Thursday, 1 January 2009

Indian Laws - II: Law Commission on the need to change the Indian laws

January 1, 2009

By Syed Akbar

The Law Commission of India has been making recommendations on
important legal issues to the Union Law Ministry from time to time to
keep the country's laws up-to-date in tune with the changed times. Here
are some of the recommendations on certain crucial subjects the Law
Commission made recently.

====

Special Marriage Act, 1954


* (There's) pressing need to amend the Special Marriage Act, 1954 and
the Foreign Marriage Act, 1969. Numerous marriages take place within
India and in foreign countries, which are outside the ambit of various
personal laws. They cannot be governed by the general and common
law of civil marriages for the reason of not having been formally
solemnised or registered under it. Though these enactments are meant
equally for all communities of India, yet they contain few provisions
which greatly inhibit people of certain communities to avail of them.

* In view of the conflicts of various personal laws, all equally
recognised in India, it will be in the fitness of things that all inter-
religious marriages (except those within the Hindu, Buddhist, Sikh and
Jain communities) be required to be held only under the Special
marriage Act, 1954. Even if such a marriage has been solemnised under
any other law, for the purpose of matrimonial causes and remedies the
Special Marriage Act, 1954 can be made applicable to them. Such a
move will bring all inter-religious marriages in the country under
uniform law. This will be in accordance with the underlying principle
of Article 44 of the Constitution of India relating to uniform civil
code.

==
Marriage & Divorce
==

* The Law Commission recommends enactment of a "Marriage and
Divorce Registration Act" to be made applicable in the whole of India
and to all citizens irrespective of their religion and personal law and
without any exceptions or exemptions.

* The proposed law should deal only with registration of marriages and
divorces and not with any substantive aspect now governed by various
matrimonial laws - general and community - specific. Accordingly, the
Births, Deaths and Marriages Registration Act, 1886 be repealed and
Births and Deaths Registration Act, 1969 be re-named as "Births,
Deaths and Marriages Registration Act" with a provision that officials
working and records maintained under the former Act shall be deemed
to be working and maintained under the latter Act.

* It is high time we took a second look at the entire gamut of Central
and State laws on registration of marriages and divorces to assess if a
uniform regime of marriage and divorce registration laws is feasible in
the country at this stage of social development and, if not, what
necessary legal reforms may be introduced for streamlining and
improving upon the present system.

==
Suicide (Section 309 IPC)
==

* In India, not only abetment of suicide is an offence (Section 306,
IPC), but also attempt to commit suicide is an offence (Section 309,
IPC).

* When a troubled individual tries to end his life, it would be cruel and
irrational to visit him with punishment on his failure to die. It is his
deep unhappiness which causes him to try to end his life. Attempt to
suicide is more a manifestation of a diseased condition of mind
deserving of treatment and care rather than punishment. It would not be
just and fair to inflict additional legal punishment on a person who has
already suffered agony and ignominy in his failure to commit suicide

* Section 309 of the Indian Penal Code provides double punishment for
a person who has already got fed up with his own life and desires to
end it. It is also a stumbling block in prevention of suicides and
improving the access of medical care to those who have attempted
suicide.

==
Indian Succession Act, 1925
==

* There is discrimination and no uniformity in respect of wills made by
Hindus, Buddhists, Sikhs, Jains or Parsis, where the will is made within
the territories of the ordinary original civil jurisdiction of the High
Courts of Judicature at Calcutta, Madras and Bombay and where such
wills are made outside those territories, insofar as they relate to
immovable properties situate within those territories.

* Section 213 of the Indian Succession Act, 1925 is liable to be struck
down as being violative of Article 15 of the Constitution of India. The
Commission proposes repeal of Section 213 altogether from the statute.

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