It also decides to look into whether Law Commission could be asked to suggest ‘uniform grounds of divorce’ across faiths
The Supreme Court on Wednesday, while expressing “great caution”, agreed to examine the possibility of “gender-neutral religion-neutral uniform guidelines” for maintenance and alimony.
It also decided to look into whether the Law Commission of India could be asked to suggest ‘uniform grounds of divorce’ across faiths.
The petitioner, advocate A.K. Upadhyay, argued that divorce, maintenance and alimony laws in certain religions discriminated and marginalised women. These anomalies, varying from one religion to another, were violative of the right to equality (Article 14 of the Constitution) and right against discrimination (Article 15) on the basis of religion and gender and right to dignity.
However, a three-judge Bench led by Chief Justice of India (CJI) Sharad A. Bobde asked Mr. Upadhyay if what he really wanted was the “destruction of personal laws” itself.
“You want all personal laws to be abolished?”, Chief Justice Bobde asked senior advocate Pinky Anand, who argued the plea for uniform grounds of divorce.
Ms. Anand said the petitioner was only asking for removal of the anomalies in the varied laws of divorce followed in the land.
“But it cannot be done without abolishing personal laws… You are actually asking the court to demolish personal laws”, the CJI stated.
Uniform Civil Code
“Personal laws are not protected under Article 13”, Ms. Anand argued. She then referred to the Uniform Civil Code (UCC).
Chief Justice Bobde said, “That [UCC] is for the government to do… The government can do anything. The government has the pulse of the people, or at least, that is what they should have… How can we as a court destroy personal law? Can we revoke discriminatory practices without destroying personal law?”.
The Articles in question contemplated violations by the State against the fundamental rights of citizens. On the other hand, these “discriminatory” personal law practices were imposed by citizens of a particular faith against the women of their own community. “Articles 14 and 15, etc, operate as an injunction against the State”, the CJI stated.
Senior advocate Meenakshi Arora, also for Mr. Upadhyay, said it was the State’s responsibility to intervene if personal law practices led to marginalisation and discrimination. “The State has to ensure that religions should be practised in accordance with the Constitution. State should step in when religious practices directly infringe on fundamental rights”, she submitted.
Mr. Upadhyay’s petition said that “even after 73 years of Independence and 70 years of India becoming a socialist secular democratic Republic, laws relating to maintenance and alimony are not only complex and cumbersome but also against the constitutional mandate of being equal, rational and just”.
He noted the various laws that govern the customs of marriage, divorce and alimony across religions.
“Hindus, Buddhists, Sikhs, Jains are governed by the Hindu Marriage Act 1955 and the Hindu Adoption & Maintenance Act 1956. Muslims are dealt as per status of valid marriage and prenuptial agreement and governed under the Muslim Women Act 1986. Christians are governed under the Indian Divorce Act 1869 and Parsis under the Parsi Marriage & Divorce Act 1936, but none of these laws are gender neutral,” the petition said.