Personal laws cannot be in conflict with Constitution: Law Commission

Agencies
August 31, 2018

New Delhi, Aug 31: The Law Commission in its consultation paper released on Friday said that personal laws, by virtue of being enacted as laws, cannot be codified in a way that contradicts the Constitution.

The Commission, however, clarified, that certain issues such as polygamy, nikah halala, settlement of a Parsi wife's property for benefit of children, and the law on adultery are presently sub judiced before the Supreme Court, hence, comprehensive changes on some of these have not been suggested at this stage.

The Commission said that in the absence of any consensus on a uniform civil code the best way forward may be to preserve the diversity of personal laws but at the same time ensure that personal laws do not contradict fundamental rights guaranteed under the Constitution of India.

"In order to achieve this, it is desirable that all personal laws relating to matters of family must first be codified to the greatest extent possible, and the inequalities that have crept into codified law, these should be remedied by amendment," the Commission added.

The Commission asserted that codification of discriminatory custom regardless of how commonly acceptable they may be, can lead to crystallisation of prejudices or stereotypes.

The consultation paper discussed 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 the Hindu Law, the paper among other issues, discussed problems with provisions like restitution of conjugal rights, and suggested the inclusion of concepts such as 'community of property' of a married couple, abolition of coparcenary, rights of illegitimate children etc. There are further suggestions for addressing self-acquired property of a Hindu female.

Under Muslim Law, the paper discussed the reform in inheritance law through codification of Muslim Law on inheritance, while ensuring that the codified law is gender just. The paper also discussed 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 related to protecting married women's right to inherit property even if they marry outside their community.

The paper also suggested 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 to alter the language of the Act to accommodate all gender identities.

On the issue of custody and guardianship laws, statutory or customary, the Commission suggested 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," the Commission added.

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News Network
November 29,2024

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Bengaluru: An FIR has been registered against Vishwa Vokkaliga Mahasamastana Mutt seer Kumara Chandrashekaranatha Swamiji for his communally provocative and anti-constitution remarks.

He made the statement during a protest meeting organised by the Bharatiya Kisan Sangh here on Tuesday against notices issued by Karnataka's Waqf board.

Urging everyone to unite to protect farmers and their land, Swami said that a law should be brought in where Muslims community don't have the voting power.

Stating that it should be ensured there is no Waqf board, he said someone taking away someone else's land is not "Dharma".

"...everyone should fight against injustice being caused to farmers...it is said that the Waqf board can claim anyone's land. It is a big injustice...someone taking away someone else's land is not Dharma... So, everyone should fight to ensure that farmers' land remains with them," the seer had said.

However, on Wednesday, Swami expressed regret over his statement, calling it a "slip of tongue".

He said Muslims are also citizens of this country, and they too have voting rights like others.

Based on the complaint by a social worker, the FIR was registered against him on Wednesday at Upparpet police station here, police said.

"We have registered a case against him (Swami) under section 299 (Deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs) of the Bharatiya Nyaya Sanhita," a senior police officer said.

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News Network
November 29,2024

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New DelhiI: The Supreme Court on Friday asked the Sambhal Shahi Jama Masjid committee to approach the Allahabad High Court and told the district court not to act until then upon a survey ordered on a claim of the mosque having built on a pre-existing temple.

A bench of Chief Justice of India Sanjiv Khanna and Sanjay Kumar directed Uttar Pradesh to maintain peace and harmony in the area, where four protesters were killed during the heavy stone pelting. The court also ordered the survey report of the advocate commissioner's report should be kept in sealed cover.

"We don't want anything to happen in the meanwhile...Let them (Shahi Jama Masjid committee) exercise appropriate remedies. We will keep this pending," the bench said.

Advocate Vishnu Shankar Jain, appearing for plaintiff Hari Shankar Jain and others submitted the next date of hearing has been fixed for January 8 before the civil judge (senior division).

Senior advocate Huzefa Ahmadi, appearing for the petitioner committee, contended the order is capable of great public mischief. He said as of 10 such suits are pending across the country where the survey is sought to be conducted.

"We hope and trust the trial court will not take any proceedings...We have not expressed any opinion on merits," the bench said, fixing the matter for consideration in the week commencing on January 6.

In case any revision application is filed, it should be heard within three days before the High Court, the bench ordered.

At the outset, the bench said it had some reservations with the order passed by the Civil Judge (senior division) on November 19.

The court told the Uttar Pradesh government represented by Additional Solicitor General K M Nataraj that the district administration has to remain neutral and maintain peace in the area.

The court directed the plaintiff not to file any papers.

It also ordered the advocate commissioner's report should be kept in a sealed cover.

The petitioner committee questioned the validity of the survey ordered within a short period, triggering violence in the area and leading to the death of four protestors.

The plea filed by the Committee of Management, Shahi Jama Masjid, Sambhal claimed "the hot haste" in which the survey was allowed and conducted all within a day and suddenly another survey was conducted after a couple of days with a notice of barely six hours that had given rise to widespread communal tensions and threatened the secular and democratic fabric of the nation.

The survey was ordered by a civil judge (senior division) on a suit filed by advocate Hari Shankar Jain and others.

According to the plaintiffs, Shahi Jama Masjid at Chandausi was built by Mughal emperor Babar in 1526 after demolishing the Shri Harihar temple.

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News Network
November 15,2024

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Union minister Amit Shah on Friday, November 15, said PM Narendra Modi will amend the Waqf Act despite opposition from leaders like Uddhav Thackeray and Sharad Pawar.

"Modi ji wants to change the Waqf Board law, but Uddhav ji, Sharad Pawar and Supriya Sule are opposing it," Shah said, addressing a rally at Umarkhed in Maharashtra's Yavatmal district.

"Uddhav ji, listen carefully, you all can protest as much as you want, but Modi ji will amend the Waqf Act," he said. Shah said there are two camps in the November 20 Maharashtra assembly polls, one of 'Pandavas' represented by the BJP-led Mahayuti and the other of 'Kauravas' represented by Maha Vikas Aghadi.

"Uddhav Thackeray claims that his Shiv Sena is the real one. Can the real Shiv Sena go against renaming Aurangabad to Sambhajinagar? Can the real Shiv Sena go against renaming Ahmednagar to Ahilyanagar? The real Shiv Sena stands with the BJP," Shah said.

"Rahul Baba used to say that his government would credit money in the accounts of the people instantly. You were unable to fulfil your promises in Himachal, Karnataka, and Telangana," he said.

Shah said the Mahayuti alliance has promised that women will get Rs 2,100 per month under the Ladki Bahin Yojana. "Kashmir is an integral part of India and no power in the world can snatch it away from us," Shah said.

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