Law Commission Consultation Paper on Family Law Reforms

India is a land of diversity. It houses people of different religions and faiths. The people belonging to different religions and faith are governed by different sets of personal laws in respect of matters relating to family affairs, i.e., marriage, divorce, succession, etc. The Law Commission of India has released its consultation paper on ‘Reform of Family Law’ based on the request of the Union Ministry of Law and Justice, which had asked the commission to examine matters in relation to the Uniform Civil Code.

Key Points from the Consultation Paper

The various recommendations of the commission on personal laws are as follows:

• The diversity of Indian culture can and should be celebrated. Specific groups or weaker sections of society must not be placed at a disadvantage in the process of formulating uniform civil code.
• The issue of uniform civil code is vast, and its potential repercussions are untested in India. UCC is neither necessary nor desirable at this stage.
• Commission has favored dealing with laws that are discriminatory rather than providing a Uniform Civil Code.
• Several prevailing personal laws place women at a disadvantage because of discrimination. Several of social evils like dowry, triple talaq and child marriage have taken refuge as religious customs. To seek their protection under law as religion would be a grave folly.
• These social evils do not conform to the basic tenets of human rights nor are they essential to religion. Even if it is essential to religion it cannot be a reason to continue such evils if it is discriminatory.
• The commission said that since there is no consensus on a Uniform Civil Code, it would be best to preserve the diversity of personal laws; but at the same time, it is necessary to ensure that personal laws do not contradict fundamental rights.
• The commission has said that right to equality cannot be treated as an absolute right either.

Points for Comments / Discussion / Analysis

• The view that uniform civil code is “neither necessary nor desirable at this stage” is seen as an attempt to please the ruling dispensation for which the promise of Uniform Civil Code has been a manifesto declaration.
• Lack of judicial acumen in the paper. It hasn’t said anything that has not been said earlier in scholarly works or court judgments.
• The paper is conspicuously selective in picking up the shortcomings of various personal laws.
• In the section of Muslim Law, the paper has steered clear of burning issues saying that these are sub-judice. But it has to be kept in mind that Supreme Court itself solicits the Commission’s views on matters under adjudication.
• Special marriage act is a secular law available to all communities. The commission has made no objection to prohibited degrees in marriage under the special marriage act which is a copied verbatim from Hindu Marriage Act.
• The commission is silent on the discriminatory provisions related to adoption of the modern Hindu law.
• The commission has blindly suggested the extension of succession act to agricultural property without taking into consideration the parliamentary committee report to give the states a free hand to determine the applicability of the Act to agricultural lands since Agricultural property is a state subject.

The consultation paper neither answers the government’s specific reference on the uniform civil code nor makes any unprecedented recommendation for legal reform. It brings back the issue of UCC to square one, requiring the things to start from scratch.

About Law Commission of India

Law Commission of India is a neither a constitutional or statutory body. It is established by an order of the government. It works in the arena of legal reforms. The law commission either on the reference made to it by the Central Government or suo moto undertakes research in law and reviews existing laws in India for making reforms therein and enacting new legislations. The first law commission was established during the British era under the chairmanship of Lord Macaulay. In post Independent India the law commission was first constituted in 1955. The various Law Commissions have made an important contribution towards the progressive development and codification of laws of the country.