The Commission, headed by former Supreme Court judge Justice B.S. Chauhan whose tenure ended on Friday, has come out with a 185-page consultation paper on Family Law Reforms’ said a unified nation does not necessarily need to have uniformity.
It said the best way forward was to preserve diversity of personal laws even while ensuring they did not contradict fundamental rights guaranteed under the Constitution.
Saying, secularism cannot contradict the plurality prevalent in the country, the Commission said in the paper that: Cultural diversity cannot be compromised to the extent that our urge for uniformity itself becomes a reason for threat to the territorial integrity of the nation.
Suggesting amendments in marriage and divorce in personal laws of all religion, the Commission advocated making adultery a ground for divorce for men and women and to simplify divorce procedure.
While all family laws include adultery as a ground for divorce it is important to ensure that the provision is accessible to both spouses, the paper said.
The Commission said the filing of Section 498A IPC (dowry harassment) cases was actually done by women wanting a quick exit from a difficult marriage.
It suggested that ‘Nikahnamas’ should make it clear that polygamy is a criminal offence and this should apply to all communities.
The paper stated: This is not recommended owing to merely a moral position on bigamy, or to glorify monogamy, but emanates from the fact that only a man is permitted multiple wives, which is unfair.
It favoured fixing the marriageable age for boys and girls at 18 years so that they marry as equals, and said that the insistence on recognising different ages of marriage between consenting adults must be abolished.
If a universal age for majority is recognised, and that grants all citizens the right to choose their governments, surely, they must then be also considered capable of choosing their spouses.
For equality in the true sense, the insistence on recognising different age of marriage between consenting adults must be abolished.
The age of majority must be recognised uniformly as the legal age for marriage for men and women alike, as is determined by the Indian Majority Act, 1875, i.e. eighteen years of age.
The difference in age for husband and wife has no basis in law as spouses entering into a marriage are by all means equals and their partnership must also be of that between equals, stated the report.
The Commission suggested that Parliament should enact a law to address the issue of legitimisation of children born of live-in relationships that fail to reach the threshold of a deemed marriage.
Further, such children should be entitled to inherit the self acquired property of their parents, it said.
It is urged that the legislature should first consider guaranteeing equality within communities between men and women, rather than equality between communities, the report, released on August 31 stated.
This way some of the differences within personal laws which are meaningful can be preserved and inequality can be weeded out to the greatest extent possible without absolute uniformity, it added.
The Commission said efforts have to be made to reconcile our diversity with universal and indisputable arguments on human rights.