[ad_1]
Akshat Agarwal*
Marriage Equality and the UCC
There has maybe by no means been a greater time to put in writing and take into consideration household regulation in India. Not too long ago, the Indian Supreme Courtroom began listening to two circumstances which will have profound penalties for Indian household regulation. The primary consisted of varied petitions filed by LGBTQ+ {couples} searching for marriage equality underneath India’s secular marriage regulation. These petitions ask the Supreme Courtroom to declare present regulation that solely acknowledges heterosexual marriage unconstitutional because it violates the rights of LGBTQ+ individuals. The second consisted of petitions searching for uniformity in household regulation areas corresponding to upkeep, succession, guardianship, and so on., underneath India’s numerous private legal guidelines. These petitions ask the Supreme Courtroom to direct the Parliament to enact a Uniform Civil Code (UCC) to switch current spiritual identity-based private legal guidelines as they don’t meet requirements of gender equality and discriminate towards ladies.
In current weeks, Sushil Modi, the previous Deputy Chief Minister of Bihar and an elected legislator of the ruling Bharatiya Janata Social gathering (BJP), formally spoke towards marriage equality in Parliament. Considered one of his key arguments was that marriage equality would “trigger full havoc with the fragile steadiness of private legal guidelines within the nation.” Concurrently, in current instances numerous State Governments corresponding to Uttarakhand and Gujarat, dominated by the BJP, have fashioned committees to check the feasibility of formulating and enacting UCCs of their states. That is according to longstanding calls for of the BJP to enact a UCC to switch all religious-based private legal guidelines on the nationwide stage.
How can we make sense of those developments, and have they got any significance for one another? Prima facie, there seems to be an inherent contradiction between the demand for a UCC and the opposition to marriage equality. The argument that private legal guidelines are discriminatory and violate the rights of girls is likely one of the key rationales behind the demand for a UCC. On the similar time, these allegedly discriminatory private legal guidelines are used as a defend towards accepting sexual orientation equality claims for marriage equality. How can we sq. with the straightforward dispensability of private legal guidelines with regards to the UCC, with their positioning as a roadblock with regards to accepting claims of marriage equality? Can claims of gender and sexual orientation equality ever lie alongside such a sliding scale of salience?
An Decide-in UCC?
The UCC has lengthy been a thorny concern for Indian household regulation. Whereas Article 44 of the Indian Structure talks concerning the enactment of a UCC as a non-binding constitutional aspiration, over time debates on the UCC have largely been used to emphasise the discriminatory nature of Muslim Private Regulation. Furthermore, there has by no means been any consensus or roadmap on what a UCC might entail, which has led many students to dismiss calls for for a UCC as a mere pink herring and diversionary tactic. The politics and the high-pitched polarizing rhetoric across the concern actually made the ladies’s motion shift its focus from a UCC to hunt the equalization of gender equality requirements inside completely different private legal guidelines. This additionally signifies the enduring significance of spiritual identity-based private legal guidelines as markers of group identification and neighborhood distinction. Household regulation reforms have thus come to be seen as a binary between embracing spiritual private regulation or their wholesale substitute with a secular UCC.
A few years in the past, the feminist scholar Catherine MacKinnon proposed a method out of this conundrum. Writing concerning the problem of reforming religious-identity primarily based private legal guidelines and respecting minority ladies’s autonomy to be ruled by their very own private regulation, she argued for an opt-in gender-equal household regulation regime. Underneath this regime, communities or particular person ladies might elect to be ruled by a gender-equal code as an alternative of their discriminatory private regulation. Each the opt-in regime and the spiritual private legal guidelines would exist concurrently. In accordance with MacKinnon, this regime couldn’t solely function on the stage opting right into a regulation on the time of marriage, the best way the present Particular Marriage Act works, but in addition on the stage of particular person cures. For example, if a treatment underneath the code was extra equal or preferable in comparison with the treatment underneath private regulation, the lady would be capable of go for the extra equal treatment throughout litigation. Thus, on the time of divorce a girl might go for extra equal post-divorce financial assist provisions within the code in comparison with the upkeep provisions in her private regulation. One disadvantage of the regime certainly is that it places the burden of searching for equality and going through the resultant neighborhood backlash on particular person ladies, however as MacKinnon notes, it additionally provides them company and the potential for weighing their decisions and related dangers. To an extent, it might additionally assist in shifting the steadiness of cultural energy from males to ladies inside communities. Such a regime would respect group identification in addition to particular person aspirations to be handled with out discrimination.
Within the context of LGBTQ+ rights, activists have centered on the secular Particular Marriage Act with comparable intent. To keep away from operating into conflicts with spiritual freedom by searching for marriage equality inside current private legal guidelines, advocates have tried to find same-sex marriage throughout the secular SMA. Nevertheless, as I’ve argued earlier than such an strategy is each impractical and insufficient. It’s because it ignores that secular legal guidelines and private legal guidelines stay extremely interconnected with points like parenthood and succession persevering with to be ruled by the latter. Furthermore, it ignores the intersectional identities of spiritual LGBTQ+ individuals. Moreover, the SMA stays a extremely heterosexual laws with problematic provisions corresponding to discover necessities for solemnization of marriage and marital cures just like the restitution of conjugal rights that are ill-suited to the wants of the LGBTQ+ neighborhood. This both necessitates reforms inside particular person private legal guidelines or requires the wholesale enactment of a brand new, complete household regulation code.
MacKinnon’s proposal turns into related right here. May an opt-in household regulation code, that not solely respects gender equality but in addition sexual orientation equality, steadiness the group identification and equality claims of each ladies and members of the LGBTQ+ neighborhood? Such a household regulation code might enable each ladies and LGBTQ+ individuals to choose into non-discriminatory household regulation and search authorized recognition of their relationships. For LGBTQ+ individuals it might present a complete authorized regime protecting all points of household regulation together with marriage, divorce, parenthood, inheritance and so on. It might additionally particularly deal with considerations of India’s transgender neighborhood by codifying practices corresponding to transgender non-kin households and customary inheritance practices throughout the hijra neighborhood. Furthermore, by co-existing with spiritual private legal guidelines it could additionally enable for the potential for natural, inner adjustments inside private legal guidelines which will suitably evolve over time to turn out to be conscious of the considerations of spiritual LGBTQ+ individuals.
Queering Indian Household Regulation
Considering of queer-inclusion inside such secular household regulation additionally opens potentialities for a contemporary and responsive household regulation framework. For example, current regulation of post-divorce upkeep doesn’t account for spousal contributions inside marriage. Furthermore, there isn’t any conception of dividing property that’s acquired by the financial or non-monetary contributions (corresponding to care and house responsibilities) of the spouses throughout marriage. As a substitute, post-divorce upkeep follows a needs-based paradigm which most frequently solely seeks to assist the divorcing partner (usually ladies) after they can’t in any other case assist themselves. Nevertheless, such a framework turns into tougher to maintain when the regulation begins to think about non-heterosexual marriage which comes with a special evaluation of energy between the married spouses. This isn’t to recommend that the identical upkeep regulation might all the time meet the wants of each heterosexual and LGBTQ+ {couples} however together with the latter opens new potentialities and choices for reforming the regulation for heterosexual {couples} too. Comparable circumstances for reform may very well be made for different components of household regulation, such because the regulation of parenthood, a difficulty that I discover in future writing.
By way of a judicial treatment within the ongoing petitions on marriage equality, as I’ve argued, the court docket might do higher find a broader proper to LGBTQ+ relationship recognition and thereafter direct Parliament to enact a regulation in a time-bound method. This technique just isn’t new; courts in different jurisdictions, corresponding to South Africa, have adopted it. Such a route, nonetheless, is also a chance for enacting a really equal and fashionable opt-in household regulation code that focuses on each gender in addition to LGBTQ+ equality. By being opt-in, such a code would additionally steadiness claims of group spiritual identification and but enable for the authorized recognition of LGBTQ+ relationships. This mind-set about household regulation reform brings collectively longstanding debates on the UCC in dialog with ongoing LGBTQ+ rights claims for marriage equality. It additionally permits for the potential for actually queering Indian household regulation by not solely legally recognizing the relationships of LGBTQ+ individuals but in addition making household regulation governing heterosexual households extra equal, fashionable, and responsive.
Akshat Agarwal is a J.S.D. candidate and Tutor in Regulation at Yale Regulation College, the place he obtained his LL.M. diploma in 2022.
[ad_2]
Source link
