The long and short of marriage Acts

Worm's Eye View

Laws for different religions are almost contrasting "" it's a land of confusion

Being (arguably) of sound mind and (very) aware of the transitory nature of life, I love the opening lines of the basic will in D'Souza's classic treatise on "Wills". It almost makes dying worthwhile if you can dispose of your estate in such elegant fashion.

The only deterrent is that it costs a lot to probate a will, even when it's uncontested. Succession to the estate of an intestate person takes three to four months and costs perhaps Rs 10,000. Probating a will takes a minimum of four times as long and costs five times as much.

But there is little choice in the division of an intestate person's estate. The estate of somebody born Hindu (or Sikh, Buddhist, Jain) is split under the Hindu Succession Act. A Christian's estate is divided under various Acts, depending upon place of origin. And, of course, Muslim estates are divided under Muslim Personal Law.

It matters not if somebody dislikes their siblings, possesses illegitimate offspring (or pets) they would like to provide for, or doubts the faith they inherited. The choices are stark: make a will and let your chosen successors pay high-impact costs. Or else, your estate will be parcelled out according to your ancestry.

Marriages are also denominationally-biased. Anybody can marry under the Special Marriage Act (SMA). But even in an SMA-marriage, the surviving spouse inherits under religiously-denominated succession rules. In an inter-religious marriage, the SMA may be the only option.

But when both bride and groom belong to the same community, the SMA may not even be the best choice. It has less liberal provisions for divorce than the Hindu Marriage Act (HMA). So, if a Hindu suspects that he or she is marrying a lunatic or somebody who may be indicted under the Unnatural Practices Act, he or she is better off opting for the HMA. The exit options are smoother.

Of course, divorce is extremely easy for men under Muslim Personal Law and extremely difficult for everyone under Christian law. (The controversy in the Shah Banu case related to maintenance of a divorced spouse not the provisions of divorce.) Muslim grooms can divorce easily while Christians can't divorce except under very messy circumstances. (Muslim women don't count as the Shah Banu case proved.)

Oh yes! Muslim grooms can marry four times concurrently, whereas other communities invite criminal prosecution if they marry twice. This, it is assumed by some of our MPs, makes non-Muslim men jealous. There is however nothing to prevent men and women from practising polygamy and polyandry so long as they don't "sanctify" multiple relationships by marriage (or fall foul of the Unnatural Practices Act).

There is thus no room for legal atheism in our secular democratic republic. You must marry, divorce and dispose of your estate according to a default religious option unless you are prepared for your inheritors to pay large impact costs.

One way around this confusion is to formulate a Uniform Civil Code (UCC) that applies to all. But the mind boggles at the thought of conducting personal affairs according to the ideals of the BJP, the MPLB, the CPIM, or any other body that could formulate such an UCC. The mind boggles even more at the thought of the above worthies agreeing on the specifics of any UCC.

We could, of course, offer choices to every individual via an UCC that incorporated the most useful bits and pieces of denominational laws. For example, let men marry upto four times, let women marry upto five times (drawing from Draupadi's example), let divorces be obtainable casually via SMS and e-mail. Let each citizen choose their preferred succession act.

Another less contentious method would be the cheap, fast-track probating of wills. If cheap quick, will-probating were coupled to an overhaul of the SMA for less antideluvian divorce provisions, we would actually have a working UCC. It would be one that citizens could migrate to. By choice. Without any need for offending believers of any faith whatsoever.