"Personal Laws Cannot Be Tested On Anvils Of Art. 14, 15, 21": All India Muslim Personal Law Board Seeks Impleadment In PIL Seeking Uniform Grounds Of Divorce

Questioning the prayers of a PIL seeking uniform grounds of divorce, All India Muslim Personal Law Board has filed an impleadment application asserting that the religious denomination being matters of personal law cannot be tested on the "anvil of Art. 14, 15, 21 and 44" of the Indian Constitution.

The impleadment application moved through Advocate M.R. Shamshad has been filed in a PIL filed by Ashwini Kumar Upadhyay, a lawyer and a BJP leader, seeking uniform grounds of divorce for all citizens throughout the territory of India under Art. 14, 15, 21 and 25 of the Constitution as well as other international conventions.

Notice was issued in the PIL on 16th December 2020 by a three judge bench of the Apex Court comprising of Chief Justice of India, S.A. Bobde, Justice A.S. Bopanna and Justice V. Ramasubramanian.

The primary contention raised by the applicant for opposing the grounds laid down in the petition is that the expression "custom and usage" under Art. 13 does not include faith of a religious denomination embedded in personal laws and therefore, personal laws stand excluded from the purview of Art. 13.

"Thus, if personal law stands excluded from the definition of 'laws in force' in Article 13 then all matters of faith having a direct relationship to a religious denomination being matters of personal law cannot be tested on the anvil of Articles 14, 15, 21 and 44 of the Constitution of India." The application states.

Moreover, the application also states that the laws relating to marriage and divorce amongst the Hindus are not uniform and thus such customs and practices have been protected by the Hindu Marriage Act, 1955 by adding sec. 29(2).

Questioning the vested interest of the petitioner by filing the said PIL, the applicant submits that "the petitioner is a political person and has filed most of these petitions with his vested interests to further establish himself politically in his political establishment. By filing these non maintainable petitions he has attracted large media coverage and accordingly he has used the process of the Court (also the High Court) for his political motive."

Senior Advocate Pinky Anand appearing for the petitioner had 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.

At the outset, the CJI led bench while issuing notice in the PIL remarked "We are issuing the 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.