The Supreme Court on Monday gave the government three weeks to come up with a proposal to amend the Christian divorce act while asking it to take a quick decision on a uniform civil code to end the confusion over personal laws.
“If you want to have a uniform civil code have it, you want to follow the uniform civil code, follow it. But you must take a decision soon,” a bench headed by justice Vikramjit Sen told solicitor general Ranjit Kumar.
The court is hearing a public interest litigation filed by a Delhi-based man, seeking waiver of two-year mandatory separation period before a Christian couple can move court for divorce by mutual consent. The separation period is one year for other religions.
India has separate sets of personal laws for each religion governing marriage, divorce, succession, adoption and maintenance. While Hindu Law overhaul began in the 1950s and continues, Christian and Muslim laws are relics of the colonial era.
This is the second time in four months that the court reminded the government of its responsibility as enshrined in the Constitution.
Article 44 says the state shall work towards securing a uniform civil code across the country replacing personal laws of various religious communities. The provision is a part of the Directive Principles of State Policy that are not enforceable by any court but, says Article 37, the government is duty-bound to apply them in making laws.
“What is happening? Why is this happening? It’s total confusion….The petitioner is just seeking that the Christian law should be on the same platform as that of the Hindu law as their personal law (Christian) prescribes a minimum of two years, whereas others have one year,” the bench said.
Albert Anthony has challenged the validity of Section 10A (1) of the Divorce Act, 1869, saying the two-year mandatory period of separation was biased against the Christian community amounting to “hostile discrimination”.
The Kerala and Karnataka high courts had declared the provision unconstitutional but Christians living in the other states were being denied benefit of the two judgments, he said.
Granting relief to unwed mothers who did not want to reveal the name of their child’s father in a guardianship case, justice Sen had in July strongly advocated such a code.
“India is a secular nation and it is a cardinal necessity that religion be distanced from law. Therefore, the task before us is to interpret the law of the land, not in light of the tenets of the parties’ religion but in keeping with legislative intent and prevailing case law,” he had said.
Not just courts, but activists, too, are of the view that common secular personal laws will go a long way in bringing about gender parity.
“A common civil code will help the cause of national integration by removing disparate loyalties to law which having conflicting ideologies,” CJI YV Chandrachud said in the Shah Bano maintenance case in 1985.
Ten years later, the court declared invalid the second marriage of a Hindu man who converted to Islam to marry without divorcing his first wife. “It appears that…the rulers of the day are not in a mood to retrieve Article 44 from the cold storage where it is lying since 1949,” justice Kuldip Singh said in what came to be known as the Sarla Mudgal case.
A uniform civil code, however, remains a contentious issue. While the BJP, which leads the government at the Centre, has been demanding it for long some minority groups are opposed to it.