The 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.
Here it also imperative to understand the recent changes that have happened in term of adultery laws in India.
Adultery was considered a punishable offence under section 497 of IPC which states,” Whoever has sexual intercourse with a person who is and whom he know or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery and shall be punished with imprisonment of either description for a term which may extend to five year, or with fine, or with both”. In such case the wife shall not be punishable as an abettor.
Presently a five-judge Constitution Bench, led by Chief Justice of India Dipak Misra, in four separate but concurring opinions held that adultery is not a crime and struck it off the Indian Penal Code.
Justice Rohinton Nariman, in his separate opinion but concurring judgment holding that adultery is not a crime, said Section 497 made a husband the “licensor” of his wife’s sexual choices
“Husband is not the master… Obituaries should be written of these historic perceptions,” Chief Justice Dipak Misra observed
Justice D.Y. Chandrachud, in his separate view, termed Section 497 as a “codified rule of patriarchy”
There are two propositions that arise now. They are as such
1. Is it the matter of individual choice how individuals behave in their marital relationship?
It is definitely the question of morality how one behaves in his relationship. People may have difference of opinion but when it comes to understand and live by the responsibilities as in the social fabric of the country, one must understand how the individual choices are going to impact the relationship. The circumstances in which these choices are made are often the cause of concern for individuals. A person with sound mind, when treats someone with the view of an object and tries to, identify the mode of having any kind of physical/sexual relationship have always been treated as immoral.
Even from the Ramayana we have an immoral and unacceptable character display of Ravana who abducted a lady, but the circumstances in which he did it also play a vital role, out of disgust or due to the feeling of revenge he tried to do something, which is always condemned and for the same cause he was penalized with a death penalty.
When it comes to having a relationship it is mostly due to affection and not by force, the idea of having extra marital affair, may be treated as adultery as it hurt the feeling of other spouse, be it man or women , in this regard it is mostly perceived that the male chauvinism is the only reason for indulging in adultery, but as the times are changing the perception is also getting shifted towards equality and involvement of both the genders in deed, so both should be punished equally but to prove who is the culprit is once again a difficult task, its better to solve the problem by conversation & consensus.
Now let us examine the previous and present situation of Section 497 of IPC pictographically:
Fig: 1 depicts the condition of Section 497 prior to the judgements:
It indicates that if any person C enters into the marital relationship of A & B
Case: 1- if C is male, C would be penalized on complaint of A, B could never be penalized from adultery as an abattoir.
Case: 2- If C is married woman; A would be penalized on complaint of C’s husband
Case: 3- if C is unmarried woman/ widow, A will not be penalized
In any case B, the wife of A cannot complain against the act of adultery
Fig: 2 depict the condition of Section 497 after the judgment:
It indicates that if any person C enters into the marital relationship of A & B, the provision of penal action has been scrapped and to decide the further course of action has been left on the aggrieved party affected due to committed adultery.
So giving the right to decide to live with the partner or to end the relationship (divorce) has been left to the individual choice of adult spouse. This in some way also strengthen the fundamental right to life and personal liberty and to promotes a life of dignity by empowering the individuals and removing the interference by the state machinery.
It can be treated as a forward step towards modernization and social development of the society, however the effects must also be studied further, which brings us to the question of probable impact on the society and trends that may arise in future.
2. What can be the impact of the recent laws on the social fabric of the country and the upcoming repercussions?
It is definitely a welcome decision to scrap section 497 of IPC and leave the situation in the hand of spouses but if we are to analyze the situation and probable out comes that may evolve in due course of time, we must understand that our society is still in the clamps of male chauvinism, though feminism is also spreading its feathers, it will take time to strike an actual balance in term of marital relationship.
In a country where still 70% population lives in villages and fulfilling the basic necessities is a concern, consideration for resolving the cases of perceived adultery on the basis of conversation and consensus are meager. It may not be resolved but give further give rise to a free pass to practice adultery leading to the increase in no of cases of divorce or furthermore curbing down the individuals voice as there is no provision for penalties now.
Other concern is that dilution of the law can promote forced cases of adultery where one will try to prove occurrence of consensual sex and may get away with it without penalty, we are already seeing in the recent time how #Metoo campaign victims are day to day increasing in number, the question of adultery may not be involved in these cases but it cannot be said in absolute term because many a time it becomes difficult to come up with courage against socially powerful people , sexual harassment cases if left unattended may lead to a condition where adultery will come in picture and the thin line of trust will start getting crooked spoiling the society.
The provision for penalizing both could have been one of the steps towards equality and empowerment. Giving away the penalty shows the perceived trust in society and positive attitude towards law abiding citizens.
While it may give second chance to improve their mistake in certain circumstances and a platform to start over again in their relationship, it is not the case which is going to be true every time. The data will prove the actual impact within few years. Still the step can be treated as a benchmark judgment in IPC.
It is clear that the choice of relationship is an individual choice, two individuals may part if one cheats, but to attach criminality to infidelity is going too far. Besides, there is no data to back claims that abolition of adultery as a crime would result in “chaos in sexual morality” or an increase of divorce.
How married couples deal with adultery is “absolutely a matter of privacy at its pinnacle”.
Loss of moral commitment in a marriage creates a dent in the relationship, but it is left to each individual to deal with the problem — some may forgive while others may seek divorce. Punishing each other or the wife’s lover is unlikely to re-kindle commitment
Section 497 treated a married woman as the commodity of her husband which stated that Adultery is not a crime if the cuckolded husband connives or consents to his wife’s extra-marital affair and treated a married woman as her husband’s “chattel”. It was archaic and based on the chauvinistic reason that the “third-party male” has seduced the woman, and she is his victim. Justice Nariman took the case of a woman who is on the verge of getting a decree of divorce. “If, she has sex with another man, Section 497 still makes the ‘other man’ guilty of adultery.”
Marriage does not mean ceding autonomy of one to the other. Ability to make sexual choices is essential to human liberty. Even within private zones, an individual should be allowed her choice. Society imposes impossible virtues on a woman. Raises her to a pedestal. Confines her to spaces. Objectifies her and says she should be pure. But society has no qualms to commit rape, honour killings, sex-determination and infanticide.
Though adultery is considered to be an offence relating to marriage, the wife of an adulterer has no voice of her own, no agency to complain. If the woman involved in the extra-marital affair happens to be single and has no husband who is wronged, the law treats the situation with total unconcern.
The Indian culture is culture of values and optimism, from the ancient times, society has been giving respect to the females, the step to scrap section 497 of IPC is an essential step to equalize and harmonize the marital relations and to sort out mistakes by means of conversation.
It is a step towards enhancement of equality & liberty and to make people responsible for their personal choices. Enabling people to react and keep order in the society by entrusting them with more powers to actually use their free will and improve and make choices for themselves without any fear. It may also be treated as a step towards the Gandhian methodology of self-rule where it is spoken of righteous ways of leading the life and doing what one feel is right by following his own conscious.
Power to decide one’s relationship is essentially a question of liberty but liberty by means of essential checks & balances is definitely a better option.
After doing deep analysis and collection of data every five years, course of action to review and formulate new law relevant with present circumstances faced by Married individual should be framed.