1st September Editorial

REDEFINING PARENTHOOD: THE URGENT NEED FOR A MODERN UNIFORM CIVIL CODE

Introduction: The Need for a Comprehensive Uniform Civil Code (UCC)

  • As the government considers the introduction of a Uniform Civil Code (UCC) through a special parliamentary session in September 2023, it is essential to broaden the scope of this legal reform beyond issues like polygamy and divorce.
  • To be effective, the UCC should prioritize the “best interests of the child” principle in all custody disputes and challenge the absolute rights of biological parents over adoptive parents.

 

Current Legal Framework: An Overview of Custody Laws

  • The current legal framework in India, including the Guardians and Wards Act of 1890 and Section 6 of the Hindu Minority and Guardianship Act of 1956, largely favors the father as the natural guardian, with the mother having custody until the child reaches five years of age.
  • However, the interpretation of the term “after him” has been debated in the context of custody arrangements.

 

Custody Under Islamic Law

  • Interestingly, Islamic law approaches custody as the right of the child rather than the parents, and the father ranks lower than several maternal figures in the hierarchy of custody rights.
  • Different Islamic schools provide varying guidelines on the duration of maternal custody based on the child’s gender and life events.

 

Complex Issues Beyond Parental Custody: Biological Parents vs. Adoptive Parents

 

  • The adoption of a UCC necessitates addressing more complex issues, such as custody claims by biological parents following adoption and cases involving biological fathers accused of rape.
  • Courts have been increasingly favoring the claims of biological parents over adoptive parents without adequately considering the child’s best interests.

 

Case 1: Custody Dispute Involving an Accused Biological Father

  • In a case decided on July 26, 2023, the Bombay High Court awarded custody of a child to a biological father accused of rape, despite the child having already been adopted.
  • The child had been born after an alleged rape incident, and the biological mother had surrendered the child for adoption after marrying another person.
  • The court’s decision to grant custody to the biological father without considering the best interests of the child or the biological mother’s emotions raised ethical concerns.

 

Case 2: Adoption Dispute Challenging Biological Parents’ Claims

 

  • In another case, the Allahabad High Court granted custody of a girl child to her biological parents, disregarding the rights of adoptive parents who had legally adopted her at three months of age.
  • The family court had initially ruled in favor of the adoptive parents based on the child’s testimony and her best interests.
  • However, the high court emphasized the child’s right to know her real identity and her biological parents’ custody rights, neglecting the traumatic impact on the child and her adoptive parents.

 

The Importance of Protecting Adoptive Parents’ Rights

  • A progressive UCC should not overly prioritize biological ties. It must safeguard the rights of adoptive parents to ensure a conducive environment for adoption.
  • Additionally, the UCC should not insist on the matrimonial bond between parents and ideally provide for guardianship options for single parents, surrogate parents, and queer parents, acknowledging the evolving nature of family structures and responsibilities.

Conclusion

A comprehensive UCC should focus on the “best interests of the child” principle, protect the rights of adoptive parents, and adapt to the diverse family dynamics in contemporary society. This approach will promote fairness and justice in custody disputes while considering the evolving nature of parenthood.

DECOLONISE OR DIVIDE? UNRAVELING THE COMPLEXITIES OF AN IMPERATIVE

Introduction:

  • The concept of “decolonise” has gained significant prominence in contemporary intellectual discourse.
  • It encompasses a broad range of actions, from reshaping education to redefining laws, rewriting history, reimagining public spaces, and reclaiming cultural identity.
  • This movement is represented in influential books like J Sai Deepak’s “India that is Bharat” and shorter polemics such as Ambika Dutt Sharma’s “Bharatiya Manas ka Vi-Upniveshikaran.”
  • While it has found a strong foothold in vernacular languages, particularly Hindi, it is also influencing policy changes, including debates over the Criminal Law Code, making decolonialism a widespread ideology.

 

The Attractiveness of “Decolonise”:

The term “decolonise” carries rhetorical power because it is difficult to oppose in principle. However, the current iteration of decolonial talk conceals a potentially exclusionary political agenda.

 

The Promise of Decolonising the Mind:

  • One of the central promises of the decolonial project is the liberation of the Indian mind from colonial intellectual domination.
  • It recognizes that colonialism worked through intellectual control and argues that this control has continued through the Indian state.
  • It also addresses issues of language, suggesting that knowledge generated in Sanskrit or vernacular languages should not be relegated to second-class status.
  • Renaming laws in non-English terms is seen as a step in this direction.

 

 

Critiques of the Decolonial Project:

 

  1. Over-Determined Binary: It often simplifies complex issues into a binary opposition between the West and Indic cultures, overlooking the nuances within both traditions and the potential for divergence within Indian thought itself.

 

  1. Narcissism: Some proponents of decolonialism claim that Indian society was self-reliant and self-complete, not needing engagement with other traditions. This perspective is criticized for its hubris and self-satisfaction.

 

  1. Blood and Identity: Decolonial discourse sometimes relies on notions of origin or descent to determine what constitutes Indian intellectual tradition.

 

  1. Use of “Indic“: The term “Indic” is employed as a metaphysical tool to assert the authenticity of arguments, potentially leading to a superficial understanding of the Indian tradition.

 

Resentment and Conspiratorial Thinking:

The current decolonial project often carries a sense of resentment and relies on conspiratorial explanations for the decline of Indian traditions. Instead of seeking self-examination and nuanced answers, it tends to attribute problems to external conspiracies, which may not fully explain the complexities of the issue.

 

Targets and Exclusivity:

  • Islam and Christianity are explicit targets of the decolonial project, not just because they are foreign but because it is perceived as a project with imperial ambitions.
  • Conditions for acceptance are set in a way that ensures they will always fall short, reinforcing exclusion.

 

Discomfort with Social and Epistemic Injustice:

  • While the decolonial project acknowledges the misrepresentation of Indian knowledge, it is wary of an account of Indian history through the lens of social justice and systemic oppression.
  • It tends to sanitize these issues in the name of preserving a “self-complete” tradition, which may benefit the privileged.

 

Concluding Thoughts:

The decolonial project tends to conflate modernity with colonialism rather than acknowledging the broader impulse to subject collective rules to practices of justification.

It raises questions about the terms on which citizens should relate to each other, suggesting that the answer cannot simply be “whatever is Indic,” highlighting the complex and potentially problematic nature of the decolonial agenda.

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