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Opinion

SC seeks government response on uniform divorce laws

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On Wednesday, the Supreme Court launched a contentious debate over uniform grounds for divorce and child support / alimony across the country that are gender and religion neutral.

A bench of three judges headed by Chief Justice of the Supreme Court of India (CJI) SA Bobde issued a notice to the Ministry of the Interior, the Ministry of Law and Justice and the Ministry of Women and Child Development on two separate petitions filed by a lawyer and the Bharatiya Janata Party (BJP) leader, Ashwini Kumar Upadhyay.

The petitions highlighted Article 44 of the Constitution, which is a guiding principle that calls on states to implement a Uniform Civil Code for all citizens. But its main objective was the discriminatory practices existing within the personal laws that violate Article 14, which offers the right to equality, and Article 21, which promises the right to dignity. as well as article 15, which prohibits discrimination. Such practices place women in a lower position than men, the petitioner maintains.

The petitions asked that regardless of religion or gender, the grounds for divorce or support for men or women be the same. To express this point, the petitioner hired two prominent high-level defenders, Pinky Anand and Meenakshi Arora, to convince the court that the issue in question was not invasion of personal laws, but justice and gender equality.

Initially reluctant to issue a notice, the CJI-led bank asked Anand: “It is leading us in a direction that will invade personal laws and demolish what they seek to achieve.” Anand explained that there are discriminatory practices within the personal laws of each religion, but the court has viewed those issues from the prism of gender equality and gender justice.

He cited a 2017 decision by a Constitutional Court of the Supreme Court in the Shayara Bano v Union of India case that rejected the practice of triple talaq as unconstitutional.

Anand also referred to a 1995 SC decision in the Sarla Mudgal case in which the court asked the government to involve the Indian Law Commission in drafting comprehensive legislation that streamlines the personal laws of minorities in India. in accordance with the modern concept of human rights.

The petition highlighted the discriminatory grounds for divorce that exist between Hindus versus Muslims, Christians and Parsis. For example, adultery is grounds for divorce for Hindus, Christians, and Parsis, but not for Muslims. Incurable leprosy is a reason for divorce between Hindus and Christians, but not between Parsis or Muslims.

Impotence is grounds for divorce for Hindus and Muslims, but not for Christians and Parsis. Similarly, underage marriage is grounds for divorce among Hindus, but not among Christians, Parsis, or Muslims.

The court, also composed of Justices AS Bopanna and V Ramasubramanian, said: “Can we eliminate these discriminatory grounds without going into personal laws? The triple talaq was found to be a practice not approved of by religion. The government may know the pulse of the people, but how do we invade personal laws?

Arora, who spoke in favor of uniform bases for alimony, pointed out that when religious practices infringe the rights guaranteed by the Constitution, such practices should not receive any protection from the courts.

“The different grounds for divorce build on and reinforce patriarchal and stereotyped notions about women. Personal laws discriminate against women in marriage, inheritance and guardianship of children. For this reason alone, it completely contravenes the principles of equality and dignity of articles 14, 15 and 21 and of global conventions, ”the petition states.

The Court highlighted another concern. “The question that arises is what fundamentals to adopt: Hindu, Islam or Christianity.” The court found an alternative sentence mentioned in both petitions asking the court to order the Indian Law Commission to examine all personal laws and suggest uniform grounds for divorce and alimony taking into account the best practices of all international religions and conventions.

The bank quoted this sentence contained in the petitions and said: “This can be considered. We will issue a notice, but with great caution. “

Upadhyay later told reporters: “It is regrettable that 70 years after our Constitution was passed, no government has taken steps to implement Article 44. This shows that they are not interested in justice and gender equality. . With the notification from the Court, I am convinced that the Center will answer my prayer on uniform grounds for divorce and maintenance. “

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