Uniform Divorce, Maintenance, Alimony Laws and Supreme Court

First, let’s understand the history of it

UCC would provide for one law for the entire country, applicable to all religious communities in their matters such as marriage, divorce, inheritance, adoption etc.

Article 44 of the Constitution lays down that the state shall endeavour to secure a UCC for the citizens throughout the territory of India.
Article 44 is one of the Directive Principles of State Policy (DPSP).

DPSP as defined in Article 37, are not justiciable (not enforceable by any court) but the principles laid down therein are fundamental in governance.

The origin of the UCC dates back to colonial India when the British government submitted its report in 1835 stressing the need for uniformity in the codification of Indian law relating to crimes, evidence, and contracts, specifically recommending that personal laws of Hindus and Muslims be kept outside such codification.

An increase in legislation dealing with personal issues at the far end of British rule forced the government to form the B N Rau Committee to codify Hindu law in 1941.

Based on these recommendations, a bill was then adopted in 1956 as the Hindu Succession Act to amend and codify the law relating to intestate or unwilled succession, among Hindus, Buddhists, Jains, and Sikhs.

However, there were separate personal laws for Muslims, Christian and Parsis.

To bring uniformity, the courts have often said in their judgements that the government should move towards a UCC.

The judgement in the Shah Bano case (1985) is well known.

Another case was the Sarla Mudgal Case (1995), which dealt with the issue of bigamy and conflict between the personal laws existing on matters of marriage.

By arguing that practices such as triple talaq and polygamy impact adversely the right of a woman to a life of dignity, the Centre has raised the question of whether constitutional protection given to religious practices should extend even to those that are not in compliance with fundamental rights.

WHAT IS THE RECENT PETITION WHICH HAS BEEN FILED IN SUPREME COURT?

BJP leader Ashwini Upadhyay has filed a petition in the Supreme Court seeking a uniform law for divorce and alimony.

India has a common criminal code in the CrPC and the IPC but the civil laws are codified in personal laws that govern people belonging to different religious communities. Now a petition has come before the Supreme Court seeking direction for a uniform divorce and alimony law for everyone.

Is this petition an attempt to take the civil laws a step closer to the Uniform Civil Code as prescribed under Article 44 of the Directive Principle of State Policy of the Constitution?

STATEMENT OF ASHWINI UPADHYAY

“Uniform Civil Code means a set of laws that is religion-neutral and gender-neutral. Unfortunately, even after 73 years of Independence and 70 years of implementing our Constitution, we don’t have gender-neutral and religion-neutral laws.”

The criminal code deals with all the crimes that take place on the soil of the country. The personal laws broadly deal with issues relating to marriage, divorce and inheritance.

“Uniform Civil Code has five parts in it -- uniform age of marriage, uniform grounds of divorce, uniform maintenance and alimony, uniform adoption and guardianship, and uniform succession and inheritance. These are not the matters of personal laws but civil rights and human rights, and such matters cannot be discriminated based on religion or gender,”

WHAT SUPREME COURT SAID?

Agreeing to consider the petition for uniform divorce and alimony law, the Supreme Court has sought a response from the central government. This development becomes significant due to two previous Supreme Court rulings in the matters of personal laws.

In 1995 while pronouncing judgment in the Sarla Mudgal case, the Supreme Court held that enactment of the Uniform Civil Code was a necessity for the Indian legal system from stopping the citizens from taking advantage of one or the other personal laws. The Sarla Mudgal case was related to bigamy involving the conversion of Hindu individuals to Islam for marriage.

The other matter relates to the instant triple talaq judgment of 2017 when the Supreme Court declared it unconstitutional. Before that, the instant triple talaq had the protection of the Muslim Personal Law.

Currently, various personal laws govern different sets of Indians depending on which religious group they belong to. The Hindu Marriage Act of 1955 and the Hindu Adoption and Maintenance Act of 1956 deal with marriage, divorce, adoption and inheritance of the Hindus, Sikhs, Buddhists and Jains.

The Supreme Court in its notice to the Centre sought to know whether it is possible to "remove discriminatory practices against women in various religious communities without encroaching into their laws".

The Supreme Court has spoken in favour of the Uniform Civil Code multiple times. In recent years, the Supreme Court underscored the necessity of the Uniform Civil Code in 2003 in the Father John Vallamattom case. Then again last year, the Supreme Court repeated it in the Jose Paulo Coutinho case saying “there has been no attempt to frame a Uniform Civil Code applicable to all citizens of the country despite exhortations”.

WHAT IS THE RECENT PETITION?

A petition has been filed in the Supreme Court against a “blatant attempt” being made to take away the fundamental right of Muslim women to practice their religion, all in the guise of providing a “uniform law” across all faiths.

Amina Sherwani has asked the Supreme Court to hear her before deciding whether a uniform civil law for divorce, maintenance and alimony will leave Muslim women like her better-off.

In December last year, the Supreme Court had agreed to examine advocate A.K. Upadhyay’s plea for a single law covering divorce, maintenance and alimony for all religions. Mr Upadhyay had argued that laws governing them in certain religions discriminate and marginalise women.

Ms Sherwani says she represents women who follow the Islamic faith, who married according to the Muslim rites and traditions and is a recipient of the rights and entitlements provided to her. She said their law allows Muslim women like her “such rights that may not be available under other marital laws”.

The Muslim personal law provides a Muslim woman with various options to divorce her husband. They include Talak-e-Tafweez (the wife’s right to divorce her husband is like that of the husband if the same has been incorporated in the nikahnama or where such a delegation has been made by the husband on a subsequent date); Khula — the wife can get her marriage dissolved through Darul Kaza (Shariat Court); Talak-e-Mubarrah — divorce by mutual consent; Fask — the wife can get an annulment of marriage through Darul Kaza; and finally, via the Dissolution of Muslim Marriages Act of 1939.

The application filed by Ms Sherwani said “Muslim marriage is contractual and as such the parties to it are allowed to impose conditions for regulating their matrimonial relations. Such conditions can be imposed before the marriage or at the time of the marriage or even after the marriage”.

Ms Sherwani also referred to ‘Mehr’, which is “considered to be a symbol of respect to the wife and as such, it is meant to be substantial”.

WHAT NEXT?

The government and society will have to work hard to build trust, but more importantly, make common cause with social reformers rather than religious conservatives.

Rather than an omnibus approach, the government could bring separate aspects such as marriage, adoption, succession and maintenance into a UCC in stages.

Need of the hour is the codification of all personal laws so that prejudices and stereotypes in every one of them would come to light and can be tested on the anvil of fundamental rights of the Constitution.