"Do You Want To Abolish Personal Laws, How Can We Encroach On It" : SC Issues Notice 'With Caution"On PILs For Uniform Law For Divorce, Maintenance and Alimony

A three judge bench of the Supreme Court (SC) comprising of CJI SA Bobde, J. AS Bopanna and J. V Ramasubramanian issued notice on two Public Interest Litigations  seeking uniformity in the personal laws regulating divorce, maintenance and alimony for Indian citizens.

Senior Advocate Pinky Anand appearing for the petitioner Ashwini Kumar Upadhyay. prayed that these personal laws and religious practices are discriminatory under Art. 14, 15 and 44 of Indian Constitution as well as other rights conferred under International Instruments.

The plea seeks directions on the Ministry of Home Affairs, Ministry of Law and Justice (Legislative Department) and Ministry of Women and Child Development.

CJI SA Bobde however was unconvinced over the arguments advanced by Ms. Anand. "You want the abolishment of Personal Laws?" CJI asked to which she had replied in the negative. "You are not saying it doesn't mean that's not the reality. You are asking us to encroach upon personal laws and remove the distinction that they create." CJI continued.

Ms. Anand put reliance on the Shayara Bano case where the Supreme Court had recently declared the practice of Triple Talaq as being unconstitutional. She also referred to the Sarla Mudgal case wherein directions were issued by the Top Court to the Government under Art. 44 in a conflict between personal laws and matters relating to marriage.

"Government is the pulse of people. They can do so. How can we as a Court encroach on personal laws?" CJI intervened. Ms. Anand argued that the prayer was to remove discriminatory practices qua religion and other religious practices infringing the fundamental rights of Indian citizens.

"Did we say in Shayara Bano that the grounds of divorce be same? What was the discriminatory provision? Triple Talaq was found to be non-existent as it was an old practice. Also, in that case Parliament passed a legislation which is not the same in this case." CJI continued.

Ms. Meenakshi Arora representing another petitioner argued that the case comprises of a larger issue. She said "Religious practices are one thing. But constitutional rights are another. When religious practices directly infringe the Fundamental Rights, they cannot be said to be protected."

The bench issued notice in the case, however, while doing CJI remarked "We are issuing notice with great caution."

The petitioner has sought following direction from the Court.

-direction to Union Home and Law Ministry to take appropriate steps to remove the prevailing anomalies in the grounds of maintenance and alimony in order to make them uniform for all citizens without discrimination on the basis of religion race cast sex or place of birth in spirit of the Articles 14, 15, 21, 44 and International Conventions

-alternatively, being custodian of the Constitution and protector of the fundamental rights, declare that the discriminatory grounds of maintenance and alimony are violative of Articles 14, 15, 21 of the Constitution and frame gender neutral religion neutral uniform guidelines for maintenance and alimony for all Indian citizens;

-alternatively, direct the Law Commission of India to examine the domestic and international laws and prepare a report on 'uniform grounds of maintenance and alimony' within 3 months in spirit of the Articles 14, 15, 21 & 44 and international conventions;

-Constitution seeking 'Uniform Grounds of Divorce' for all citizens throughout the territory of India in spirit of Articles 14, 15, 21, 44 of the Constitution and International Conventions.

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