Plea Filed In Supreme Court For Intervention In Petition Seeking Uniform Grounds Of Divorce

KEY TAKEAWAYS

  • Bharatiya Stree Shakti has filed a petition in the Supreme Court to allow it to mediate in the main petition filed by Advocate Ashwini Kumar Upadhyay, who is also BJP Leader on uniform grounds of divorce.
  • The Mumbai based women's right organization is looking for a significant direction to the Central Government to formulate a law providing for uniform grounds of divorce and uniformity in grant of alimony for women irrespective of their religion, caste or place of birth.
  • The petitioner has no economic, business or propriety motive for this intervention. Thus it requested the Court to allow to mediate in writ petition.
  • The Bench of Chief Justice SA Bobde and Justices AS Bopanna and V Ramasubramanian claimed that they issue notice with caution as the plea asks them to demolish the achievements of personal laws.
  • The Bench has issued notices to the Union Ministry of Home Affairs, the Ministry of Law and Justice and the Ministry of Women and Child Development on the plea.

FURTHER DETAILS

Two separate PILs have been placed before the SC for uniform grounds of divorce and maintenance and remove discriminatory process in different communities as they violate the fundamental right of equality.

Upadhyay is asking for mandate to the Centre so that it can take proper measures to remove the prevailing irregularities in the grounds of maintenance and alimony to make them uniform for all citizens regardless of their religion, caste, place of birth, or sex.

He also presented that even though there are well expressive provisions in the Indian Constitution like Article 44 which talks about a uniform civil code, the Centre has not been able to provide religion and gender-neutral uniform grounds of divorce for citizens.

National Commission for Women and BhartiyaStree Shakti, a voluntary and autonomous organization published a comprehensive report in 2017, “Efficacy OfLaws Pertaining to Property and Marital Rights in Different Regions in India”. Therefore the latter wishes to be a part of formulating uniform on divorce.

The petitioner has sought a direction to the Law Commission so that the issue can be examined and it can give a suggestion within three months.

BACKGROUND

There is a Hindu Marriage Act, 1995 for Hindus, Buddhists, Sikhs, and Jains if they want to file for a divorce. And there is another set of personal laws for Muslims, Christians and Parsis. If the couple belong to two different religions then they can seek divorce under the Special Marriage Act, 1956. And there is yet another Foreign Marriage Act, 1969if either of the partner is a foreign national.

The petitioner claims that minimum age for getting married, custody, guardianship, adoption, inheritance etc. are to be considered as secular activities. Therefore, there is a need to ensure that men and women have uniform that minimum age for getting married, custody, guardianship, adoption, inheritance etc. This has to be done by the State to keep the essence of Articles 14, 15 andArticle 21 (right to life and personal liberty) of the Constitution.

The need of a uniform civil code regarding marriage also arises from the fact that India has signed the Declaration on elimination of discrimination against women adopted by the United Nations General Assembly in 1967. The Declaration requests all the governments to take mandatory steps which can help in abolishing existing laws, customs, regulation, and practices which discriminate women.

ARGUMENTS MADE

Senior Advocate Meenakshi Arora said that it was the State's responsibility to interfere if the result of personal laws is marginalization and discrimination. She talked about provisions of Muslim Law which provides for maintenance to the women only for the period of Biddat.

Upadhyay also submitted that the irregularities varying from one religion to another are opposing to Article 14 and 15 of the Indian Constitution which talk about right to equality and right against discrimination respectively.

The petitioner has stated that the different grounds of divorce have led to enforcing of patriarchal and stereotypical notions about women.

The petition submitted by Mr. Upadhyay submitted that even after 73 years of Independence, laws which relate to maintenance and alimony are complex and against constitutional essence which promotes equality, rationality and justice.

In his plea the BJP leader also stated that even though India has been a sovereign, socialist, secular, democratic republic the State has not been able to give uniform grounds of adoption and guardianship for all citizens of India.

It was also argued that Adoption-Guardianship are important as they are very closely linked to the mental health and psychological well-being of the children. Thus, by adopting uniform laws the spirit of the Constitution will be strengthened which is the heart and soul of the Indian Constitution.

It was also argued that the Apex Court had interfered in the ShayaraBano case by holding that triple talaq is unconstitutional.

The steps arose on 13th September, 2019, when in the case of Jose Paulo Coutinho, the Supreme Court highlighted the need for a uniform civil law and Goa's example was cited. But no steps were taken by the Central Government to do so.

The plea issued in the case of Ashwini Kumar Upadhyay vs. Union of India and ors. Also states that the implementation of a uniform law will reduce dislike and hatred and also help in increasing tolerance. Further, it was also presented that since there are multiple personal laws, it causes a delay during judicial adjudication of cases by creating confusion.

OPINION OF THE BENCH

The Bench asked Mr. AshwiniUpadhyay if he wishes to destruct the personal laws. Senior Advocate Pinky Anand who is arguing for uniform grounds of divorce was asked the same question.

Chief Justice Bobde was of the opinion that implementation of Uniform Civil Code is to be taken care of by the Central Government as it has the pulse of the people. He also said that they as a Court cannot destroy personal law.

CJI also said that the discriminatory personal law practices were imposed by citizens of a specific faith against the women of their own community and the Articles in question (Article 14 and Article 15) operate as an injunction against the State.

CONCLUSION

While some people have been supporting a Uniform Civil Code, some believe that instead of promoting fraternity, it may lead to dispute among different communities. This is because people are very attached to their respective religious practices and have less tolerance for any type of intervention by the State.

However, it is true that the judicial proceedings will become less confused and faster if there is an implemented law to provide for uniform civil code. It will remove the conflicting ideologies people have regarding law procedures.

Click here to download the original copy of the judgment

 

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Mansi Aggarwal Online
on 15 February 2021
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