In a PIL, the Supreme Court has been moved seeking a direction to the Centre to make divorce laws uniform for all citizens without prejudice on the basis of religion, race, caste, sex or place of birth in the spirit of the Articles 14, 15, 21, 44 and international conventions and take apposite steps to remove anomalies in the grounds of divorce.
BJP leader and Supreme Court Advocate Ashwini Kumar Upadhyay filed the Plea.
Prayer has been made that the court being the custodian of the Constitution and protector of the fundamental rights should declare that the discriminatory grounds of divorce are unconstitutional.
While considering the different laws of divorce, the best practices of all religions and international conventions the guidelines for ‘Uniform Grounds of Divorce’ for all citizens should be framed.
Submissions in the Uniform Divorce Plea
The petitioners’ state “The facts constituting a 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.”
“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.The Plea
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.”
Centre has failed to provide “Uniform Grounds of Divorce” for all citizens throughout the territory of India, even after these well-expressed provisions in the Constitution.
“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.”
Different Religion and the Governing Laws
The petition notes 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. Under the Special Marriage Act, 1956 Couples belonging to different religions have to seek divorce. The Foreign Marriage Act 1969 applies if either partner is a foreign national.
Hence, divorce is neither religion neutral nor gender 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 & 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.”
It was highlighted that many other grounds of divorce are neither gender-neutral nor religion-neutral, though the hallmarks of a socialist secular democratic republic like ours of equity, equality and equal opportunity are enshrined.
Arguments raised in the uniform code for Divorce
“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.”
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.
Within three months, a direction in the spirit of Articles 14, 15, 21, 44 of the Constitution has been advanced to the Law Commission of India examining the laws relating to divorce and suggest ‘Uniform Grounds of Divorce’ for all citizens.