This consultation on family law reforms in India, discusses a range of provisions within all family laws, secular or personal, and suggests a number of changes to in the form of potential amendments and fresh enactments.
As general suggestions to reforming family law, the paper discusses the introduction of new grounds for ‘no fault’ divorce accompanied by corresponding changes to provisions on alimony and maintenance, rights of differently-abled individuals within marriage, the thirty-day period for registration of marriages under Special Marriage Act; uncertainty and inequality in age of consent for marriage, compulsory registration of marriage, bigamy upon conversion etc.
Under Hindu law the paper among other issues discusses problems with provisions like restitution of conjugal rights, and further suggests the inclusion of concepts such as ‘community of property’ of a married couple, abolition of coparcenary, rights of illegitimate children et al. There are further suggestions for addressing self-acquired property of a Hindu female.
Under Muslim law the paper discusses the reform in inheritance law through codification of Muslim law on inheritance, but ensuring that the codified law is gender just. The paper also discusses the rights of a widow, and the changes application to general laws such as introduction of community of (self-acquired) property after marriage, inclusion of irretrievable breakdown of marriage as a ground for divorce.
Under Parsi law there are suggestions relating to protecting married women’s right to inherit property even if they marry outside their community.
The paper also suggests the expansion of the Juvenile Justice (Care and Protection) Act, 2015, to make it into a robust secular law that can be accessed by individuals of all communities for adoption. There are suggestions for amending the guidelines for adoption and also a suggestion to alter the language of the Act to accommodate all gender identities.
The paper discusses lacunae within custody and guardianship laws, statutory or customary, and suggests that the ‘best interest of the child’ has to remain the paramount consideration in deciding matters of custody regardless of any prevailing personal law in place.
Although the sixth schedule provides exemptions and exemptions to states in the North East and tribal areas, we suggest that efforts of women’s organisations in these areas be acknowledged and relied upon in this regard to suggest ways in which family law reform could be aided by the state even when direct intervention may not be possible.
Since a number of these issues such as polygamy, nikah halala, settlement of a Parsi wife’s property for benefit of children, as well as the law on adultery among others is presently sub judice before the Supreme Court, they have been discussed in the paper but comprehensive changes on some of these issues have not been suggested at this stage.>