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SC seeks govt reply on uniform divorce laws

By Abraham Thomas
PUBLISHED ON DEC 17, 2020 12:05 AM IST

The Supreme Court on Wednesday set the ball rolling on a contentious debate over uniform grounds for divorce and maintenance/alimony across the country that are both gender- and religion-neutral.

A three-judge bench headed by Chief Justice of India (CJI) SA Bobde issued notice the ministry of home affairs, ministry of law and justice, and ministry of women and child development on two separate petitions filed by a lawyer and Bharatiya Janata Party (BJP) leader, Ashwini Kumar Upadhyay.

The petitions highlighted Article 44 of Constitution which is a directive principle asking states to implement a Uniform Civil Code for all citizens. But their main thrust was on discriminatory practices existing within personal laws that violate Article 14, which offers the right to equality, Article 21, which promises the right to dignity. as well as Article 15, which prohibits discrimination. Such practices place women at an inferior position to men, the petitioner contends.

The petitions prayed that regardless of religion or gender, grounds for divorce or maintenance for men or women should be the same. To put this point through, the petitioner engaged two leading women senior advocates, Pinky Anand and Meenakshi Arora, to convince the court that the issue at hand was not of encroaching on personal laws but of gender justice and equality.

Initially hesitant to issue notice, the CJI-headed bench asked Anand: “You are taking us into a direction which will encroach upon personal laws and demolish what they seek to achieve.” Anand explained that discriminatory practices exist within personal laws of each religion, but the court has seen those issues from the prism of gender equality and gender justice.

She cited a 2017 decision by a Supreme Court Constitution Bench in the Shayara Bano v Union of India case striking down the practice of triple talaq as unconstitutional.

Anand also referred to a 1995 SC decision in the Sarla Mudgal case wherein the court asked the government to involve the Law Commission of India in framing a comprehensive legislation that rationalizes the personal laws of minorities in keeping with the modern day concept of human rights.

The petition highlighted the discriminatory grounds for divorce existing among Hindus vis-à-vis Muslims, Christians and Parsis. For instance, adultery is a ground for divorce for Hindus, Christians and Parsis, but not for Muslims. Incurable leprosy is a ground for divorce among Hindus and Christians but not Parsis or Muslims.

Impotency is a ground for divorce for Hindus and Muslims but not for Christians and Parsis. Similarly, underage marriage is a ground for divorce among Hindus but not Christians, Parsis or Muslims.

The bench, also comprising justices AS Bopanna and V Ramasubramanian, said: “Can we remove these discriminatory grounds without entering into the personal laws. Triple talaq was found to be a practice not approved by the religion. Government may know the pulse of the people, but how do we encroach upon personal laws.”

Arora, who argued in favour of uniform grounds for maintenance, pointed out that when religious practices infringe on rights guaranteed under the Constitution, such practices should not get any protection from the courts.

“Different grounds of divorce are based on and reinforce patriarchal and stereotypical notions about women. Personal laws discriminate against women in marriage, inheritance and guardianship of children. For this reason alone, it completely contravenes principles of equality and dignity under Articles 14, 15 and 21 and the global conventions,” the petition stated.

The Court underlined another concern. “The question that arises is which grounds to adopt – Hindu, Islam or Christianity.” The bench spotted an alternative prayer mentioned in both petitions where it asked the court to direct the Law Commission of India to examine all personal laws and suggest uniform grounds for divorce and maintenance considering the best practices of all religions and international conventions.

The bench cited this prayer contained in the petitions and said, “This can be considered. We will issue notice but with great caution.”

Upadhyay later told reporters: “It is unfortunate that 70 years since our Constitution was adopted, no government has taken steps to implement Article 44. This shows they are not interested in gender justice and equality. With the Court issuing notice, I am convinced that the Centre will respond to my prayer for uniform grounds for divorce and maintenance.”

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