The 21st Century is all about changes right from the way of change in communication, food consumption, lifestyle and much more, which has impacted each personal life. Thus, it is time to have reforms in Indian family law.
All the personal laws under the Constitution of India were enacted in 1940-50s such as :
- Hindu: Hindu Marriage Act 1955.
- Muslim: Muslim marriage is a contract under Muslim law.
- Christian: Indian Christian Marriage Act 1872 and the Divorce Act 1869.
- Parsi: Parsi Marriage and Divorce Act 1936
- The Guardian and Wards Act 1890
- The Family Court Act 1984
- the Special Marriage Act 1954
- The Foreign Marriage Act, 1969 ETC
They were a few changes in recent laws as follows:
- Triple Talaq struck down in Shayara Bano v. Union of India (AIR2017SC609).
- the Protection of Women from Domestic Violence Act 2005.
With new changes and perspectives coming up in the lifestyle, such as the concept of living-in Relationships, change in sexual orientation, inter-caste and inter-religion marriage, etc., all have given rise to complexity for marriage adoption and custody issues, inheritance etc. This complexity in legal matters has no remedy from the existing acts as no amendment has been made or considered to do the same.
The fact that people are vocal about the matriarchal systems of family organisations, some of these also preserve provisions that are not in the interest of women. Hence, it demanded the court of law and legislation consider bringing changes in India’s personal and family law.
A few recent cases demanding reforms such as :
- Same-Sex Relationships are decriminalised and accepted for their marriage. –In Navtej Singh Johar v Union of India (2018) 10 SCC 1, the Supreme Court decriminalised section 377 of the Indian Penal Code. It was held that section 377, insofar as it criminalises voluntary sexual relations between lesbian/gay/bisexual/transsexual (LGBT) persons of the same sex in private, discriminates against them based on their sexual orientation. That violates their fundamental rights guaranteed by Articles 14, 19, and 21 of the Indian Constitution.
- Triple Talaq practice struck down- The recent Supreme Court judgment Shayara Bano v. Union of India AIR2017SC609 outlawing the practice of triple talaq has taken a first step towards ending personal law practices that are discriminatory towards women but mainly on the premise that triple talaq is also not an essential practice of Islam suggesting that bad in theology cannot be good in law. The court has not delved into the supremacy of fundamental rights in case of a conflict between the personal law and fundamental freedoms, and the premise of Narasu Appa Mali has not been overturned.
- Indifference in international conventions bounded and domestic laws- Indian courts are obligated to give due regard to international conventions and norms while interpreting domestic laws, mainly when there is no inconsistency between them and there is a void in domestic law.
The Court of law and Parliament need to have amendments to personal laws and further codify other rules, particularly succession and inheritance. The suggestions are not limited to religious personal laws alone but also significantly address the lacunae in general secular laws such as the Special Marriage Act, 1954, Guardians and Wards Act 1869.