FAMILY LAW AND THE CHANGING NEEDS OF HOMOSAPIENS

 FAMILY LAW AND THE CHANGING NEEDS OF HOMOSAPIENS:- OurLegalWorld

Written by Simran Agarwal

INTRODUCTION

The history of the race of homosapiens has been largely affected by the kith and kin that mostly depends on the place or family where one is born. If suggested locally, the laws and traditions differ on different perspectives. The customs of a particular class of people for e.g., domiciled in the northern part of the world will entirely be different from class of people domiciled in the eastern or western part of the world. A big role is played by the faiths that are followed by different people throughout the world. But to bring all these wrangles under a single roof, there arises a need to study the international family law. The study of international family law is important because today the entire system is affected by globalization and is actually the example of the famous Indian, Sanskrit text “vasudhiava kantubhkam” which when translated to English says “the world is one family”. So, to govern the laws of the family as a whole, international family law is required.

People have been evolving ever since and to change with the changing lifestyles is the only way to progress. Clinging to any particular kind of notion will eventually lead to a dead end. Change must be accepted in the society or else one will get washed away with the tide of the change. The basic purpose that the current topic deals in is the changing trends in the preference of the relationships that homosapiens want to establish today. A set of norms to particularly deal with the change in the type of relationships that the society is heading towards is the need of the hour. It is important for the governments to recognize the changing trends or else the suffering of the people will increase, and the main purpose of the law shall fail which is to help the people lead a peaceful life and to keep any wrongful acts in check. The recommendation that is largely made in this premise is that the family law not only the marriage and divorce but the family law as whole with all its parts and parcels should be codified for the betterment of the society and to recognize the changing needs of the people.

1. MARRIAGE & DIVORCE

Marriages have been traditionally believed to be the process of uniting wealth of two families. It has been seen as a process to unite not only the families of the bride and groom but also a way to expand the wealth of the family, in which the general practice that was seen was the dowry or the exchange of materialistic possessions between the two families. Whereas now in the 21st century the model of marriage has been shifted from unison of two families or wealth to more stable and subtle settlement between two individuals. A general discrimination pattern that has been observed in centuries show that women have as a gender been discriminated against the other gender, which is the male. In the 21st century where the perception of not only concepts like marriage and divorce is changed but also the concept like gender is challenged.

The concept of gender with respect to the LGBTQ rights are completely changed. People now prefer perceiving gender not as the genitals that they were born with but with what they understand of themselves. Now, according to the longest surviving perception of the marriage as a sacred or holy partnership or contract, based on any kind of reason, it may be the religion one follows or the state one is domiciled in or the culture one follows etc. the concept of getting separated from the partner comes in. When studied largely the basic criteria to get married these days is the want of companionship unlike the previous ones where it was only considered to be a business expanding action. When one gets married with due consent and with the sole purpose of companionship and not expansion of business then the need of separation based on different character traits and circumstances shall arise. This separation when legally recognized is known as Divorce. Divorce is the process through which a status of a married human can be changed from that of married to that of single. The divorce when legally recognized unfetters both the parties from the rights and duties that had been initiated with the process of marriage. Just like marriage, states have also recognized divorce. The Islamic personal law had allowed triple talakh which has now been illegalized by many law systems in the world. It was illegalized in India vide the Supreme Court judgment dated 22/08/2017[1]. Whereas it was long back illegalized in the Jurisdiction of Pakistan and Bangladesh vide Muslim Family Law Ordinance 1961[2]. The European Council also has recognized divorce as a right. The concept of marriage has to be defined with respect to different genders and their prevailing perceptions. Law and society are dynamic in nature. They will have to evolve with the changing notions, perceptions and understandings of the people. The existing notions of marriage and the existing laws which are the results of previous notions of people has to be streamlined to get a peaceful and co-existing environment.

2. DOMESTIC VIOLENCE

A major reason for humans specially the female gender has been observed seeking divorce for the reason of Domestic Violence, particularly in India. Domestic Violence is an umbrella term and includes in it all sorts of violence (physical and mental) that are being practiced against the spouse within the four walls of the house in name of the holy matrimony. Different interpretations of the term have come forward after a few of the jurisdictions have tried interpreting it. It has been observed that initially there was an increasing rate of cases of violence against the women as a gender, where as later it has also been observed that violence against women based on discrimination against gender was not left without a competition, the men were equally harassed in the matrimonial relations under the term domestic violence. A study published in a leading journal named as Indian Journal of Community Medicine shows the true facts of the violence against men which is near about 53 percent of men face violence based on the discrimination against gender, whereas, out of these men an estimated percentage of men facing violence from their respective spouses is around 10 percent which is near about same in the United states[3]. The laws related to new trends should be formulated. The United Kingdom has a whisper about the civil partnership agreement[4]. The civil partnership agreement allows two individuals to stay together without getting married.

The civil partnership (Scotland) act 2014[5], introduced marriage for same sex couples. In a successful attempt to curb violence against women The United Nation had come up with Declaration on the Elimination of Violence against Women[6] in the year 1993 where the attempt to precisely define gender-based violence against women. Article 1 of the declaration defines violence to be any gender-based act which may disturb the women physically or mentally. But no such law exists with regard to the violence that is being carried out against men. Violence is an act which abducts the human rights of those against whom such violence is being conducted. It should not be about the gender or any other factor but about the act being wrong per say.

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CONCLUSION

The need of the hour is that even the family law should evolve with the families. The acts per say or according to the reasonableness of the human mind should be termed as right and wrong. It should be neither be based on the sure short formulas of morality, which in this dynamic society are no more sure short because with the changing times, ideals will also be have to changed. It is high time that we recognize the changing human mindsets and the changing human needs. There is no doubt that the crime rate is also increasing. This is just because the law and the society do not either coincide or complement each other. Either of one, if happens, the crime rate also will drastically fall. It would be because of the clarity in definitions. The lawmakers should try framing the law in such a manner that the act be termed as wrong and right. Now, it is also important for the lawmakers to give a premise to the act. The premise given by the lawmakers will further help the interpreting organs to provide to its citizens a more secure and peaceful environment.

FAMILY LAW AND THE CHANGING NEEDS OF HOMOSAPIENS

Written by: Simran Agarwal, 5th Year, School of Law, University of Petroleum and Energy Studies, Dehradun 

Author view is personal

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[1] Shyara Bano vs Union Of India, (2017) 9 SCC 1

[2] Laws of Bangladesh, Muslim Family Law Ordinance 1961, (Nov. 05, 2022, 8:10 PM) http://bdlaws.minlaw.gov.bd/act-305.html

[3] Intimate Partner Violence, Sexual Violence, and Stalking Among Men, (Nov. 05, 2022, 8:10 PM), https://www.cdc.gov/violenceprevention/intimatepartnerviolence/menipvsvandstalkig.html

[4]Civil Partnership in Scotland, (Nov. 05, 2022, 8:20 PM) https://www.mygov.scot/civil-partnership

[5] Supra. 

[6] OCHCR, Declaration on the Elimination of Violence against Women, (Nov. 05, 2022, 8:20 PM) https://www.ohchr.org/en/instruments-mechanisms/instruments/declaration-elimination-violence-against-women