[BREAKING] "Can we encroach on personal laws?" Supreme Court seeks Centre's response in plea for uniform grounds of divorce, maintenance, alimony

"You want personal laws to be abolished. You are not saying it but that is what will have to be effectively done. How can we encroach upon personal laws," CJI Bobde asked.
[BREAKING] "Can we encroach on personal laws?" Supreme Court seeks Centre's response in plea for uniform grounds of divorce, maintenance, alimony
Meenakshi Arora and Pinky Anand

Bringing in uniform grounds for divorce, maintenance and alimony for all citizens could raise obvious issues about which religious grounds/ norms should be chosen to apply across the communities, the Supreme Court said on Wednesday even as it sought Central government's response on the same.

A Bench headed by Chief Justice of India SA Bobde was hearing two public interest litigation (PIL) petitions filed by BJP spokesperson Ashwini Kumar Upadhyay seeking uniform grounds for divorce, maintenance, alimony for all citizens across the country.

The Bench which also comprised Justices AS Bopanna and V Ramasubramanian said that entertaining the petitions would amount to nullifying personal laws in this regard.

"You want personal laws to be abolished. You are not saying it but that is what will have to be effectively done. How can we encroach upon personal laws," CJI Bobde asked Senior Advocates Pinky Anand and Meenakshi Arora who were representing the petitioner.

Anand and Arora said that discriminatory practices must be abolished and highlighted the Shayara Bano judgment of the Supreme Court in which the practice of instant Triple Talaq was struck down by the top court.

"State has to ensure certain rights and dignity under the Constitution. If a religious practice is violating such fundamental rights, then State has to step in," Arora said.

The rules governing Muslim community with regard to maintenance and alimony was pointed out by the counsel to highlight the discrimination faced by Muslim women in this regard.

"Problem then is which practice will you adopt across the board? How will you decide whether to adopt Hindu, Christian or Islam," CJI Bobde asked.

The Court eventually agreed to issue notice but maintained that it is doing so with "caution".

"We will issue notice but with caution," the Court said.

Currently, laws governing personal lives of citizens in India vary from person to person depending upon the religion/ community to which the person belongs. While the law is codified for Hindus, Christians, Parsis, Sikhs, Buddhists and Jains through statutes, the same is governed by Shariat when it comes to Muslims.

Upadhyay in his plea has invoked Articles 14, 15, 21 and 44 to pray that grounds for divorce for all persons be made uniform "without prejudice on the basis of religion, race, cast, sex or place of birth in spirit."

"Article 14 of the Constitution guarantees equality before the law and equal protection of laws. Article 15 prohibits discrimination on the grounds of religion, race, caste, sex, place of birth and enables the State to make special provisions for women. Article 16 guarantees equality of opportunity and Article 21 guarantees life and liberty. Article 25 clarifies that freedom of conscience and right to profess, practice and propagate religion is not absolute and subject to public order, morality and health," the petition points out.

Upadhyay has, therefore, sought a declaration that the "discriminatory grounds" for divorce are in violation of Articles 14, 15, and 21.

The plea says that the cause of action for filing the present PIL arose in 2019, when the Supreme Court called for uniform civil laws while citing Goa's example in the Jose Paulo Coutinho Case "but Centre even failed to provide uniform grounds of divorce."

Additionally, the Directive Principles laid down in the Constitution are also highlighted by the petitioner who has stated that Article 38 requires the State to eliminate any inequalities in status while Article 44 calls upon the State to ensure that a Uniform Civil Code is implemented.

It is despite these Constitutional provisions that the Centre has failed to bring in uniform grounds for divorce even when divorce happens to be one of the most traumatic misfortunes for men and women, Upadhyay has submitted.

Detailed examples have also been cited on what the grounds for divorce are under different statutes applicable to different faiths. The lack of uniformity in this regard has been highlighted in the petition which points out that while adultery is a ground for divorce under most faiths, it is not so under Islam.

Similarly, incurable leprosy makes for a ground for divorce for Hindus and Christians but not for Parsis and Muslims.

Impotency is a valid divorce ground for Hindus and Muslims but not for Christians and Parsis, the petition states.

[Read order]

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