The Supreme Court on Wednesday agreed to hear a plea seeking "uniform grounds of divorce" for all citizens of the country adhering to the spirit of the Constitution and international conventions.
A bench comprising of Chief Justice S A Bobde and Justices AS Bopanna and V Ramasubramanian orally observed that it may consider prayer for directing the Law Commission of India to examine the laws relating to divorce and suggest “Uniform Grounds of Divorce” for all citizens in spirit of Articles 14, 15, 21, 44 of the Constitution within three months. The top court issued notice to the Centre on the plea and sought its response.
At the outset, the bench asked senior advocate Pinky Anand, appearing for petitioner Ashwini Upadhyay whether she wants all personal laws to be abolished. Anand replied in the negative.
The bench said that she is asking the court to direct something which breaches into the sphere of personal laws. It also said that the Government is supposed to check the pulse of the people and questioned if a court can encroach on personal law in this manner.
The bench further asked Anand, “Can we remove the discriminatory practices without demolishing the differences in personal laws?”
The bench referred to the Triple Talaq case and said that Parliament has brought a legislation on it. Anand submitted that the practice of Triple Talaq was found to be discriminatory and was struck down by the apex court.
The plea filed by Upadhyay sought directions to the Centre to take steps to remove anomalies in divorce laws and make them uniform for all citizens, without any prejudice on the basis of religion, race, cast, sex or place of birth.
"The court may declare that the discriminatory grounds of divorce are violative of Articles 14, 15, 21 and frame guidelines for 'Uniform Grounds of Divorce' for all citizens. Alternatively, this court may direct the Law Commission to examine the laws of divorce and suggest 'Uniform Grounds of Divorce' for all citizens in the spirit of Articles 14, 15, 21, 44 within three months, while considering international laws and international conventions," the plea said.
"Hindus, Buddhists, Sikhs and Jains have to seek divorce under the Hindu Marriage Act, 1955. Muslims, Christians and Parsis have their own personal laws. A couple belonging to different religions has to seek divorce under the Special Marriage Act, 1956," it said. If either partner is a foreign national then that person has to seek divorce under the Foreign Marriage Act, 1969.Hence, the grounds of divorce are neither gender neutral nor religion neutral, the plea said.
The PIL said that the "injury" caused to the public due to this is large because divorce is among the most traumatic misfortunes for both men and women, but even after 73 years of independence, divorce procedures are very complex in the country.
"Hence, grounds of divorce are neither gender neutral nor religion neutral. For example, adultery is a ground of divorce for Hindus, Christians and Parsis, but not for Muslims. Incurable leprosy is a ground of divorce for Hindus and Christians, but not for Parsis and Muslims. Impotency is a ground of divorce for Hindus-Muslims, but not for Christians-Parsis. Underage marriage is a ground of divorce for Hindus, but not for Christians, Parsis and Muslims," the plea stated.
The petition further said that many other grounds of divorce are neither gender neutral nor religion neutral, though equity, equality and equal opportunity are the hallmarks of a socialist, secular, democratic republic like India.
"The ongoing distinction is based on a patriarchal mindset and stereotypes and has no scientific backing, perpetrates de jure and de facto inequality against women and goes against the global trends," the plea stated.
For in-depth, objective and more importantly balanced journalism, Click here to subscribe to Outlook Magazine