Marriage, divorce, adoption — the 5 pleas by a BJP leader in SC that seek uniform civil laws

All 5 petitions were filed last year by BJP leader & lawyer Ashwini Kumar Upadhyay. In all of them, SC has issued notice, asking relevant govt authorities to respond.

New Delhi: The Supreme Court currently has five petitions pending before it that demand uniformity in civil laws in the country on five aspects — age of marriage, divorce, succession, maintenance and adoption.

All the petitions were filed last year by Bharatiya Janata Party (BJP) leader and lawyer Ashwini Kumar Upadhyay. And in all of them, the apex court has issued notice, asking the relevant government authorities to respond.

The petition seeking uniform age of marriage demands that the marriageable age for both men and women should be increased to 21 years.

The remaining four PILs have the same demand — either the Supreme Court should direct the government to “remove anomalies” in different laws, or it should frame guidelines itself to declare such “discriminatory grounds” of succession, adoption, maintenance and divorce as unconstitutional.

Explaining why he filed the petitions, Upadhyay told ThePrint: “Uniformity in minimum age of marriage, grounds of divorce, maintenance and alimony, adoption and guardianship and succession and inheritance are essential to secure gender justice, gender equality and dignity of women. These five issues are basic ingredients of right to life, liberty and dignity guaranteed under Article 21 of the Constitution.”

Calling Article 44 (Uniform Civil Code) “the soul of our Constitution”, he said successive governments have failed to implement it “due to appeasement politics”.

“Article 37 very clearly states that directive principles are nevertheless fundamental in the governance of the country and being custodian of the Constitution and protector of fundamental rights, the Supreme Court cannot be a mute spectator for eternity,” Upadhyay said.

He said he hopes the government will file its reply very soon and support his five PILs.

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SC apprehensive about encroaching over personal laws

In December 2020, the court issued notice on two of Upadhyay’s PILs, seeking uniform divorce laws and uniformity in grant of maintenance and alimony to women.

Appearing for Upadhyay, senior advocates Pinky Anand and Meenakshi Arora had then argued that different modes of divorce and varied means of maintenance and alimony to women provided for under personal laws violated the right to equality and non-discrimination.

The bench, comprising Chief Justice S.A. Bobde and Justices A.S. Bopanna and V. Ramasubramanian was, however, wary of entertaining the PILs. It was apprehensive about intruding into the personal laws of various communities.

“You are asking the court to go in a direction that will involve encroaching upon or demolishing personal laws. Can we remove discriminatory practices against women in various religious communities without encroaching into their personal laws?” the bench was quoted as asking.

However, Upadhyay’s lawyers then pointed out that the apex court did declare triple talaq in Muslim community unconstitutional. The court did issue notice on the petitions then, while clarifying that it was doing so “with great caution”.

‘Political person with vested interests’

The All India Muslim Personal Board filed intervention applications last month, in the two PILs by Upadhyay seeking uniform maintenance and divorce laws.

The applications, filed through advocate M.R. Shamshad, said Upadhyay “is a political person and has filed most of these petitions with his vested interests to further establish himself politically in his political establishment”.

“By filing these non-maintainable petitioners he has attracted large media coverage and accordingly he has used the process of the Courts (also of the High Court) for his political motive.”

Seeking intervention in the PIL for uniform laws for maintenance, the relevant application said there are already provisions available for a divorced Muslim woman to choose from. For instance, it said they can seek maintenance under the Muslim Women (Protection of Rights on Divorce) Act 1986 or under Section 125 of the Code of Criminal Procedure or under the Protection of Women from Domestic Violence Act 2005.

The two applications also submitted that personal laws cannot be tested on violation of fundamental rights under the Constitution.

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Adoption, succession and uniform age of marriage

The third of Upadhyay’s PILs demands enactment of uniform adoption and guardianship laws, pointing out the difference between the adoption and guardianship laws among Christians, Hindus, Muslims and Parsis.

Senior advocates Anjana Prakash and Geeta Luthra argued the adoption PIL on Upadhyay’s behalf. The court issued notice on the PIL on 29 January, seeking responses from the Union ministries of home, law, and women and child development on the petition.

The fourth PIL asks for uniform succession laws and points out several gender biases in laws governing inheritance and succession under different personal laws. For instance, it points out that under Muslim law, when a man dies, the share of a female heir is typically half of that of male heirs.

This PIL came up on 10 March, when the court issued notice on the petition and allowed an intervention application filed in the case by three lawyers through advocate Vivek Narayan Sharma.

This application highlights the gender inequality in current succession laws and demands, among other things, a direction to the government “to provide for new laws governing intestate succession which does not discriminate between men and women and applies equally to everyone, irrespective of their religion”.

The fifth one is a transfer petition. It demands that two other PILs — one filed in the Delhi High Court and another filed in the Rajasthan High Court — be transferred to the Supreme Court. Both these PILs sought a uniform age of marriage for men and women.

The one in Delhi HC was filed by Upadhyay himself in August 2019 and the second one in Rajasthan HC was filed by one Abdul Mannan in September 2019.

The transfer petition, now filed jointly by Upadhyay and Mannan, seeks transfer of these two PILs to the Supreme Court to avoid multiplicity of litigation and conflicting views on the issue by different high courts. The court issued notice on this petition on 2 February.

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Supreme Court on the Uniform Civil Code

Article 44 of the Constitution mentions the Uniform Civil Code, saying “the State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India”.

However, Article 44 is a part of the Directive Principles of State Policy. Article 37 says these principles are “fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws”. However, unlike fundamental rights, directive principles cannot be enforced by courts if there is a violation.

The Supreme Court, in 1985, observed that “a common civil code will help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies”, and that “it is the State which is charged with the duty of securing a uniform civil code”.

In another judgment, the court observed in 1995: “When more than 80% of the citizens have already been brought under the codified personal law there is no justification whatsoever to keep in abeyance, any more, the introduction of ‘uniform civil code’ for all citizens in the territory of India.”

However, in August 2018, the Law Commission of India submitted a report saying a Uniform Civil Code is “neither necessary nor desirable at this stage” in the country. It had also said “secularism cannot be contradictory to plurality”.

But it acknowledged that there were discriminatory practices within the different family laws in the country. It, therefore, suggested some changes to marriage and divorce laws that may be uniform across religions. For example, it wanted the marriageable age for both boys and girls to be 18 years.

It also suggested that polygamy as a criminal offence should be applied to all communities, including Muslims. It had said this wasn’t being suggested “owing to merely a moral position on bigamy, or to glorify monogamy, but emanates from the fact that only a man is permitted multiple wives which is unfair”.

But the commission reserved its recommendation on polygamy specifically because a petition demanding a ban on polygamy is currently pending in the Supreme Court. This petition was also filed by Upadhyay, in March 2018.

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