This Kerala High Court judge bats for Uniform Code for marriage, divorce

In little over a year, Justice A Muhamed Mustaque has been a votary of revamping marriage and divorce laws, openly calling for a uniform code for the same in a few notable judgments.
Justice A Muhamed Mustaque
Justice A Muhamed Mustaque

The Kerala High Court recently called upon the Central government to seriously consider framing a uniform marriage code in India to promote the common welfare and good of spouses embroiled in matrimonial disputes 

Delivered by a bench headed by Justice A Muhamed Mustaque and comprising of Justice Shoba Annamma Eapen as well, the judgment struck down Section 10A of the Indian Divorce Act that mandates a compulsory waiting period of 1 year before a Christian couple is able to file for divorce by mutual consent.

The bench noted that the Indian Divorce Act previously mandated a 2 year waiting period which another division bench of the Kerala High Court itself had read down to one year to bring it on par with the waiting period stipulated by the Special Marriage Act, Hindu Marriage Act and the Parsi Marriage and Divorce Act. 

While the recent judgment did not strike down the waiting period for any differences with the personal laws of other religions, the bench deemed it fit to call for a uniform code to deal with such matters.

The bench said that in a secular country like India, the legal paternalistic approach should be based not on religion but on the common good of its citizens.

"The State’s concern must be to promote the welfare and good of its citizens, and religion has no place in identifying the common good. The Union Government should seriously consider having a uniform marriage code in India to promote the common welfare and good of spouses in matrimonial disputes", the judgment authored by Justice Mustaque said.

The recent judgment is not the first time that the Kerala High Court has called for a uniform marriage code.

In fact, in little over a year, Justice Mustaque himself has established himself as a votary of revamping marriage and divorce laws, openly calling for a uniform code for the same in a few other notable judgments as well.

This sentiment was expressed clearly in the landmark ruling allowing marital rape as a ground entitling a woman to divorce.

"Individuals are free to perform their marriage in accordance with personal law, but they cannot be absolved from compulsory solemnization of the marriage under secular law. Marriage and divorce must be under the secular law; that is the need of the hour," the judgment said.

The Court emphasised the need to establish legal safeguards to protect the spouse who files for divorce and opined that it is necessary to first bring a common marriage code.

Yet another judgment delivered by a bench headed by Justice Mustaque held that matrimonial cruelty to justify divorce must have a uniform definition regardless of personal laws.

"Law cannot recognise different varieties of cruelty as Hindu cruelty, Muslim cruelty, Christian cruelty or secular cruelty to justify a decree for divorce. The mere fact that Hindu Marriage Act and the Special Marriage Act refer to cruelty without any rider or explanation or the fact that the Divorce Act and the Dissolution of Muslim Marriage Act give indication of the nature of matrimonial cruelty that ought to be established, cannot justify the conclusion that the nature of matrimonial cruelty which would entitle the spouses for divorce is different under different personal laws," the Court said.

In this case, the Court drew inspiration from Article 44 of the Constitution which says that one of the directive principles of state policy shall be that "the state shall endeavour to secure for the citizens a uniform civil code throughout the territory of India”, to arrive at this conclusion.

The uniform civil code (UCC) that is sought to be achieved as per Article 44 of the Constitution of India would see one law being made applicable to all religious communities in matters such as marriage, divorce, adoption, and inheritance.

Justice Mustaque's calls for a uniform code for marriage and divorce adds to the gradually growing list of Constitutional courts, judges, State governments, and political parties and leaders who have been calling for a UCC.

In November last year, the Allahabad High Court had called upon the Central government to implement a UCC, opining that it is a necessity and cannot be considered ‘voluntary’ as was observed by Dr. BR Ambedkar 75 years prior.

Before that, the Delhi High Court had underscored the growing necessity for a UCC in view of the rapid transformation of Indian society with the gradual dissipation of traditional barriers of religion, community and caste.

Even though in 2018, the Law Commission of India recommended against enacting a UCC, two years later, then Chief Justice of India SA Bobde spoke admiringly of the administration of justice under the UCC in Goa, called the Goa Civil Code.

While Goa still remains the only State that has a UCC, the governments of the States of Uttarakhand and Gujarat have stated that they have formed committees headed by retired High Court judges, to implement a UCC.

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