BJP leader and Supreme Court Advocate Ashwini Kumar Upadhyay has moved a PIL in Supreme Court of India seeking a direction to the Centre to take apposite steps to remove anomalies in the grounds of divorce and make them uniform for all citizens without prejudice on the basis of religion, race, caste, sex or place of birth in spirit of the Articles 14, 15, 21, 44 and international conventions.
The PIL also states that being the custodian of the Constitution and protector of the fundamental rights, the court declare that the discriminatory grounds of divorce are unconstitutional and frame guidelines for ‘Uniform Grounds of Divorce’ for all citizens, while considering the different laws of divorce, the best practices of all religions and international conventions. The PIL quotes:
The facts constituting cause of action accrued on 13.09.2019 and continue, when this Hon’ble Court in Jose Paulo Coutinho Case once again pressed the need of uniform civil laws and cited the example of Goa but Centre even failed to provide uniform grounds of divorce.
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Adding further the PIL mentions,
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.
Article 38 directs the State to eliminate inequalities in status, facilities and opportunities. Article 39 directs the State to direct its policy towards securing that men-women equally, have the right to an adequate means of livelihood. Article 44 directs the State to implement a uniform civil code for all citizens. Article 46 directs to promote economic interest of weaker sections and protect them from social injustice and all forms of exploitation.
Moreover, under Article 51A, State is obligated to promote harmony & spirit of common brotherhood amongst all citizens transcending religious linguistic, regional or sectional diversities; renounce the practices derogatory to dignity of women; and, develop scientific temper humanism and spirit of inquiry and reform. Furthermore, on 26.11.1949, we the Indians, have solemnly resolved to constitute India, a sovereign socialist secular democratic republic, and to secure to all its citizens: Justice, social economic and political; Liberty of thoughts, expression, belief, faith and worship; Equality of status and of opportunity; and to promote among them fraternity assuring dignity of the individual and the unity and integrity of the nation.
It is averred that despite these well-expressed provisions in the Constitution itself, Centre has failed to provide “Uniform Grounds of Divorce” for all citizens throughout the territory of India. The PIL also states:
The injury caused to the public is large because divorce is among the most traumatic misfortunes for men and women but even after 73-years of independence, divorce procedures are very complex and neither gender neutral nor religion neutral.
Bring All Religions Under One Uniform Fold
The petition points out that Hindus, Buddhists, Sikhs and Jains have to seek divorce under the Hindu Marriage Act 1955, while Muslims, Christians & Parsis have their own personal laws. Couples belonging to different religions have to seek divorce under the Special Marriage Act, 1956. If either partner is a foreign national then the Foreign Marriage Act 1969 applies. Hence, grounds of divorce are neither gender neutral nor religion neutral. The plea illustrates,
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 & Muslims. Impotency is aground of divorce for Hindus-Muslims but not for Christian-Parsis. Under Age Marriage is a ground of divorce for Hindus but not for Christians, Parsis and Muslims.
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The plea also argues:
It is urged that similarly, 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 ours. The ongoing distinction is based on patriarchy and stereotypes and has no scientific backing, perpetrates de jure and de facto inequality against women and goes against the global trends.
Minimum marriage age, grounds of divorce, custody, guardianship, adoption, maintenance, succession and inheritance, are the secular activities. Therefore, it is duty of the State to ensure that men and women have uniform age of marriage, uniform grounds of divorce, uniform maintenance & alimony, uniform succession & inheritance, uniform adoption & guardianship in spirit of Articles 14, 15, 21 and International Conventions.
Uniformity is essential to secure gender justice, gender equality and dignity of women but State has not taken steps in this regard. Therefore, petitioner is filing this PIL under Article 32 to challenge blatant ongoing form of discrimination that is the discriminatory ‘grounds of divorce’ for men and women and for Hindus, Muslims, Christians and Parsis.
The statutory provisions, “responsible for discrimination”, have been enumerated to include Section 10 of the Indian Divorce Act, 1869; Section 13 of the Hindu Marriage Act, 1955; Section 27 of the Special Marriage Act, 1954; Section 32 of the Parsi Marriage & Divorce Act, 1936; Section 2 of the Dissolution of Muslim Marriages Act, 1939.
As a third alternative relief, the petition seeks a direction to the Law Commission of India to examine the laws relating to divorce and suggest ‘Uniform Grounds of Divorce’ for all citizens in the spirit of Articles 14, 15, 21, 44 of the Constitution within three months.
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