The working of the Indian legislature is like a mother whose kids are out of control, and she keeps chasing them and cleaning up their mess after them. We work with need-based legislation, rather than initiative legislation which works to achieve the broader goals of our Constitution and culture. This new hype about divorce being allowed on grounds of “breakdown of marriage” seems good to me as an idea and as a need of society but what disturbs me is the fact that such an amendment is being introduced only in the Hindu Marriage Act, as though people of other religions/communities don’t have an equal right to divorce when they are in a state of irreconcilable misery in their marriages. Of course, the reason for ignoring other personal laws is purely vote bank politics. But there are many aspects of the marriage laws of Hindus as well as non-Hindu religions which are shocking and would stir up great controversies if people would only be made aware of them.
For example, it is widely known that children born of a marriage between a Muslim father and a non-Muslim mother are not entitled to a share in their father’s inheritance. I came to know only recently that the exact same law applies to the inheritance of a Hindu – the children of a Muslim woman born to a Hindu man are not entitled to their father’s property! This is despite a British-made law (the Caste Disabilities Removal Act, 1850) which provides that conversion to another religion cannot result in the loss of a person’s rights over his family’s property. Shockingly, Hindu law does not discriminate by religion only in terms of inheritance, but also in guardianship. The laws of Hindu Guardianship mandate that a convert to a non-Hindu religion (i.e. Judaism, Islam, Christianity) cannot be a legal guardian of a Hindu child, even if it is his own child.
Another absurdity that recently came to my knowledge was the absolute neglect of the Christian Marriage Act, and its provisions which would be considered ridiculously outdated in any other part of the world. A Christian man has the right to seek divorce on grounds only of adultery, but his wife must prove adultery along with one of the following: incest, bigamy, cruelty, desertion, etc to have the right to seek divorce. And we judge the Islamic world for their stone age laws! Moreover, a Christian marriage cannot take place at night: a minister who solemnizes a Christian marriage between the hours of 7 pm and 6 am is liable to imprisonment of up to 3 years, with a fine, for his offense! The only exceptions to this law of timing are made for special permissions from the Church of England, the Church of Scotland, or the Roman Catholic Church. Why do foreign churches have the right to bypass Indian laws and why don’t Indian churches have the right to let their members marry at whichever hour pleases them?? According to the laws of all marriages taking place in India, no person below the age of 18 can be legally married. However, several provisions relating to marriages of minors under the Christian Marriage Act have not been repealed or amended.
As for Muslim law, the practice of “triple talaq” is an unacceptable way of divorcing one’s wife in several Islamic countries such as Iran, Iraq, Turkey, Tunisia, Algeria, Bangladesh, and even Pakistan. But in India, this anomaly still flourishes and we cannot foresee an amendment any time in the near future. The case of bigamy and polygamy has affected several women and families who have approached the judiciary for their right to equality under Articles 13 and 14 of the Constitution (providing that laws which violate fundamental rights are void, and that all citizens have a fundamental right to equality including gender and religion equality). The Supreme Court has, however, kept itself away from the controversy of striking down personal laws as unconstitutional – it has maintained the stand that changes in personal laws must be brought about by legislative action, and that personal laws are outside the scope of Article 13. What this essentially means is that as long as the Parliament is sitting quietly, the fundamental rights of individuals can be violated without remedy by the personal laws governing such individuals.
What this calls for is proactive measures by the legislature to seek the good of the people and to enact laws which minimize the inequality that exists and is agitated by controversial personal laws. Ideally, we would like to see this in the form of a Uniform Civil Code. It may not be practical to enact a UCC all at once, but as of now we cannot even see the appearance of the form of one in the distant horizon. Unless the legislature gets its act together and disciplines its children to act according to instruction, instead of chasing after them and being controlled by their demands, our legal system will continue to be hijacked by the Khap Panchayats, the whimsical fatwas of attention-seeking Maulvis and any other player who wants to have a go at it.
Note: I am not a lawyer. This post has come about as a result of conversations with friends who are lawyers, as well as some internet research.