Memo on Review of personal laws

 

To,

The Hon’ble Chairperson,

Parliamentary Standing Committee - Personnel, Public Grievances, Law & Justice

 

SUBJECT: MEMORANDUM ON REVIEW OF PERSONAL LAWS

 

Respected Sir,

Please find the memorandum related to Review of Personal laws below.

I wish to appear before the Committee for tendering oral evidence and share my experience, knowledge and research on various topics which can help shape better laws to secure the future of our country.

I am focusing on following three laws:

1. Hindu Marriage Act 1955

2. Hindu Minority & Guardianship act 1956

3. Guardian & Wards Act 1890

 

I have the following suggestions:

1. Private advocates with monetary interests should be banned from personal laws cases.

Because advocates always exaggerate and try to make the matter complex so that they can extract maximum money. An advocate makes money based on the number of hearings and number of cases. So, an advocate with direct monetary interest will never want the cases to finish faster.

S. 13 Family Courts Act already mentions that no party has an absolute right to be represented by an advocate which means the legislature intended that such cases may be represented by parties themselves.

However, our court infrastructure is so pathetic and the court staff from clerks to judges are always biased against party-in-person litigants.

 

2. Special training of judges and court staff dealing with personal laws to encourage parties to represent their cases themselves, to encourage parties to submit concise written arguments and dispose off the cases based on written arguments and evidences instead of running a full fledged trial including chief, cross exam etc. where 99% of the times witnesses on both sides are close family members repeating their side of stories and wasting time of courts and seeking adjournments.

 

3. Make it a law that everything should be digitized - from filing cases to filing interim applications, payment of any kind of money, use of digital means for summoning, virtual case hearing, downloading of copies online so that litigants do not waste time traveling 1000s of miles only to realize that opposite party has sought adjournment to harass.

 

4. Time bound disposal of cases - Dispose off cases within a fixed time period. If there's huge backlog, then new cases should not start until old cases are resolved. Once a case starts, all arguments, evidences, chief, cross etc should finish within at most 7 days and a decree be passed. This is how it happens in US. This ensures that a person does not spend whole life worrying about the case. Once a case is about to start, parties properly prepare the case and present it before the court. It also helps advocates prepare a case properly. If hearing dates are schedules months apart and go on for 5 years, it is always a challenge to rejog your memory about the case before the hearing date. Due to lack of preparation, sometimes parties suffer and justice is compromised.

Ideally, all personal law cases should be disposed off within 6 months to at the most 1 year. This should be implemented strictly and a penalty/accountability be defined for missing the deadline without any excuse. RTI law which has provisions for first appeal with time bound disposal is a good example of great law!

 

5. Quick Divorces

The proposal is that divorces should be easy and quick so that even if one person does not want to stay in marriage, he/she can apply for cancellation of marriage and free for next marriage. Alimony, maintenance, child custody matters should be separated from divorces. 

Personally, I believe divorces should have never been introduced in Hindu law. Hindu marriage should have been a sacrament. Since going back is harder and courts are normalizing adultery by making statements like "My body my choice" or "occasional adultery is not adultery", the sacrosanctity in marriages is disappearing. Marriage has become a scam for men in modern day due to heavy misuse of poorly drafted women-centric laws which were drafted by biased one-sided women groups.

 

6. Mandatory registration of pre-nuptial agreement with exit clause and other details

It is high time that courts interference be minimized in personal law cases. Govt should publish a sample pre-nuptial agreement. Both parties should sign an affidavit with basic facts like age, marital status, education etc. It should have exit clause in case the marriage does not work. It should have details on sharing the custody of child, child maintenance, sharing of assets etc. Both parties should be fully aware of the terms and conditions of exit clause and save the colossal waste of time of courts in going into nitty-gritty of salary slips and ITRs and trying to guess amount which gets appealed with mountains of litigations which consume a lifetime. Such sorry state of affairs are quite shameful for a country like India!

 

6. Durational Maintenance

Marriage is becoming a profitable business for women where they can marry for one day and argue in courts to get maintenance for lifetime from the husband without staying with him or helping him in any way.

This directly violates Art 14 of constitution by discriminating based on gender where a man is expected to work ("beg, borrow or steal" in the words of Hon'ble Court) while a woman is encouraged to sit idle at home and get paid by husband. 

Right to maintenance has to be tied to responsibility of women being maintained which is to help her husband in some way and contribute to his well being. If no such responsibility is being fulfilled, there should be no maintenance.

Any maintenance to save any citizen of India from destitution and vagrancy should be of State and not of private citizens who get cheated by unscruplous women who become burden for them for lives and destroy the lives of innocent men.

 

7. Child custody issues

Both parents are necessary for the child and there should be rebuttable presumption on equal parenting. Both parents should have equally available parenting time and this right should be enforced within at most month of separation of couples where the child moves with one parent and the other parents gets separated.

Visitation should be granted to separated parent within 1 month at most.

The goal of child custody arrangements should be to grant equal time to both parents. This could be based on 4 days with one parent and 3 days with other parents OR 1 week/month/year with one parent and 1 week/month/year with other parent or upto parties to how they want to make it work with the final goal of similar time of access to both parents.

There should be no gender based discrimination in access to the child.

The Shia law correctly recognized that mother has right over the child only till age of 2 because the only thing that mother can do and father cannot do is breastfeeding. As soon as breastfeeding is stopped, a father is equally capable of taking care of child.

Also, no grandparent or other relatives of the child should lose access to the child caught in matrimonial dispute. Law need to take care of it.

 

8. Fiduciary relationship between a guardian and child

A guardian should not be able to make profit out of child support. IN US, Canada, single parenting is as high as 30% i.e. 1 in 3 children have only one parent. This is because the govt. pays nice child support to single parents and only 20% of it is actually spent on the child and remaining 80% is used by the parent to enjoy their lifestyle. This is sure shot way to destroy our Hindu culture and future of Bharat. To avoid this, law need to ensure that any money paid by a parent for the child is kept in separate govt. controlled bank account and only used for legitimate child expenses only and savings be built over time which help the child in future.

S. 20 of HMGA codifies this but it has never been practised by courts.

 

9. Punishment for false cases

It has become a fashion due to heavy involvement of advocates to put false cases especially on men. Fathers are accused of heinous sexual offenses including misuse of Pocso by mothers so that the latter can win the custody battles. Gods, dharms, ethics, values, Hindu values are murdered daily in family courts. Because there is no punishment for false cases. Punishment for false case should be twice the punishment for falsely accused section.

 

10. Punishment for not complying with child visitation orders or parental alienation

If a parent poisons the mind of a child against the other parent, it is cruelty and abuse of the child and State under its parens patriae jursidiction cannot absolve itself of the repercussions to the child. Such alienating parents should be put in jail and custody should be transferred. However, to identify Parental Alienation Syndrome, there is a need for qualified psychologists/psychiatrists who can detect the poisoning of mind of the child and can assist the court.

 

11. Need for amicus & govt lawyers in personal law cases

Private advocates should be banned and govt. should provide free lawyers or amicus to help the court understand the matter and resolve dispute at the earliest. Whatever govt will spend on such lawyers, it will gain a lot more by saving the time of litigants, by avoiding overburdening of courts and need for more judge/infrastructure. Those private lawyers will also get hired by govt and will not need to lie and make complicate allegations to earn their living. More people will approach courts and govt lawyers will have more work to do.

 

12. Equal Shared parenting as rebuttable presumption

The law should make equal parenting time as presumption. So that parents should not need to fight for access to their biological offspring. Only in exceptional cases with solid evidence, this presumption can be rebutted in the trial. Most cases will not even need to go for trial and result in lot of benefits to everyone.

 

13. Gender neutral laws

Please make all laws gender neutral. Whether the law will be used by men or not can only be determined once the law is available for a particular gender. Many women centric laws are created by saying that only women are affected. Eg. 498A punishes demand for dowry from wife by husband but there's no law to punish when the wife and her family make demands from the husband and threatens to walk out of marriage if demands are not fulfilled. Similar, Domestic violence on men is not recognized at all, modesty/dignity of men is not recognized in law, men cannot face stalking in law. None of these presumptions in law match the reality and points to the abject failure of government of those times who created these bad laws for politics.

 

Use gender neutral words everywhere:

Instead of 'wife'/'husband', use spouse.

Instead of 'male'/'female', use person.

Instead of 'he'/'she', use they

 

14. Presumption of innocence until proven guilty

Several recent amendments are trying to put burden of proof on an accused which violates the timeless principle of innocent until proven guilty. No nation or culture has survived which has punished the innocent and no culture and nation will be able to survive if innocents are not protected. Such amendments should be thrown out of the statutes.

 

15. Signatory of Hague convention

India should sign hague convention so that any parent kidnapping a child to another country can be brought back to India. The absence of India's participation in Hague convention has brought lot of shame to India multiple times.

 

16. No alimony if marriage lasts less than 5 years

Hindu marriages are failing. This will cause severe demographic shift by 2050. One main reason is that people are now marrying out of greed and try to break out of marriage to receive large alimony. This can be prevented by making the law that no alimony or maintenance will be given if the marriage does not last for at least 5 years. The longer the marriage, the higher the alimony. So that people stay in marriage to increase the alimony amount. Otherwise, marriage is reduced to just a scam for men.

 

It is difficult to type it in detail on such wide topic when it is not known if it will be acknowledged by anyone or not. I can provide case laws, comparison between laws of various countries etc. along with a lot more technical and meaningful details for each point. I can debate on any topic related to above points and present my points if given an opportunity.

 

I wish to appear before the Committee for tendering oral evidence and share my experience, knowledge and research on various topics which can help shape better laws to secure the future of our country.

 

Jai Hind! 

 

Yours Faithfully,

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