Lucknow, UP, India, 226028

REFORMATIVE STEP TOWARDS HOMOGENOUS DIVORCE LAWS FOR ALL CITIZENS

Vaishali Singh

INTRODUCTION

A country like India with pervasive and diverse culture, there is customs and practices behind a municipal law governing the distinct population of the country. Laws of civil nature i.e. minimum age of marriage, divorce, custody, guardianship, adoption, maintenance, succession, inheritance have very huge heterogeneities. Divorce laws in India vary from citizen to citizen according to their religion, caste and place of birth. Hindus including Sikhs and Jains covered under Hindu Marriage Act 1955, have different grounds of divorce unlike Muslims, Christians, and Parsis who have their own legislation. Distinction based on patriarchal and has no scientific footing must be separated from fundamental right to profess and practice religion.

LEGALITY IN APPLICATION OF UNIFORM DIVORCE GROUNDS

The Constitution of India and international conventions which talks about equality, liberty and justice is a vehement part for homogenous laws for all citizens. Advocate Ashwini Upadhyay (famous for his PILs), filed a Public Interest Litigation (PIL) in supreme court under article 32 seeking ‘Uniform Grounds for Divorce’ for all citizens throughout the territory of India as it is violative of Article 14 (equality before law), Article 15 (prohibition of discrimination on grounds of religion, race, caste, sex or place of birth, Article 21 (protection of life and personal liberty) of the constitution. Article 44 of Directive Principles of State Policy (DPSP) also strive to apply uniform civil code for all citizens i.e., “the state shall endeavor to secure for the citizens a uniform civil code throughout the territory of India” although DPSP is not mandatory or justiciable in nature. India already has vast areas of uniformity of laws such as ‘Goa’. Uniformity of laws leads to chaos in plurality and parallel system of personal laws. The plea aims to harmonize the laws like divorce which is solely a secular activity.

NEED OF REFORM

Uniformity in laws leads to national integrity and unity. All citizen should cherish with same parameters of justice. But lots of intricacies while seeking divorce has been seen as Hindus, Buddhists, Jains and Sikhs governed by Hindu Marriage Act, 1955 and Muslims, Christians and Parsis have their own personal laws. Couple from different religion seek divorce under the Special Marriage Act 1954. Foreign Marriage Act 1969 covers the couples who’s either partner is foreign national. Thus one nation one law seems to be diminished, it often become problematic for couples due to discriminatory provisions to proceed divorce because there is no similar grounds of divorce for all, permanent alimony and maintenance is another challenge faced by judiciary due to different legislation, hence equal justice not being served. Maintenance Pendente Lite and expenses of proceedings are some benefits which one can avail but other cannot due to different laws which creates inequality in society. For Hindus bigamy is a crime and also a ground of divorce while Muslim personal law allows four legal wives. Adultery is a ground for divorce in Hindu and Christian but Muslim women cannot seek divorce on this ground, incurable leprosy, venereal disease, insanity are some grounds where Hindus and Christians can get divorce but same cannot be applied in case of Muslims and Parsis. Impotency is also a ground of divorce for Hindu – Muslim but not for Christian and Parsis. These different legislation for different class of society leads to chaos and segmentation which is neither gender neutral nor religion neutral. Uniformity is essential to secure gender justice, gender equality and dignity of women which is a duty of state under article 38(1) to promote welfare of the people by securing and protecting social order.

PROS OF UNIFORM DIVORCE GROUND

  1. To provide equality before law and equal status to all citizens.

  2. To bypass the contentious issue of reform of existing personal laws.

  3. To facile the confusion and distinct application of laws with respect to divorce.

  4. To discard segmentation of society and promote national integration and unity.

  5. Application of international conventions, norms and standards with respect to women empowerment, to uplift social welfare of women’s in society.

  6. To promote gender neutrality and religion neutrality.

CONS OF UNIFORM DIVORCE GROUNDS

  1. Practical difficulties due to diverse culture, practices and believes.

  2. It leads to encroachment on religious freedom.

  3. Sudden application lead to chaos in society and in its usual workings.

  4. Divorce are traumatic to both men and women, state interference may enhance encroachment in their personal matters.

  5. Tough task for law commission to provide its recommendations on uniform divorce laws considering each class of society without hurting their religious sentiments.

  6. Divorce cases is of civil nature which requires mediation and conciliation more than uniform laws.

CASES FOR CONSIDERATION

Mis Jordan Case 1985: apex court highlighted the need of uniformity in marriage or divorce laws. In the case of Shahbano 1985,[1] Supreme Court struck down the provisions of personal laws and provided maintenance under section – 125 of CRPC to promote the rights of Muslim’s women who are exploited by Talaq-e-biddat or Triple Talaq prevailing in the Muslims society. As Danial Latifi case 2001:[2] S.C upheld the right of Muslim’s women to seek maintenance under section – 125 CRPC till death or remarriage and declared triple talaq as unconstitutional and unfair practice by Muslim’s men which requires punishment. In a leading case law of Sarla Mudgal v. Union of India 1985, conversion to Islam does not make first marriage void, apostasy is a ground of dissolution of marriage in Hindu law but mere conversion does not dissolve the marriage. In this case court ruled out that personal laws is variant from religion.

CONCLUSION

Together we unite divided we fall: National integration and harmony lies in uniform and equivalent laws for all. Ongoing distinction should be discarded to uplift the social position of women because divorce is a traumatic conditions for both men and women but due to social order in India, women suffrage is more than men. Our constitution and international convention vindicates equal opportunity for all irrespective of religion, race, caste, sex or place of birth which is a global trend. Modern India should be liberal and envisage diversity as a strength for unique recognition in global platform. Women empowerment is a footing of healthy and prosperous society. Therefore, state shall endeavor to frame the uniform grounds for divorce and shall aid to develop India as a gender neutral and religion neutral country.

Author(s) Name: Vaishali Singh Chauhan (Unity P.G. & Law College, Lucknow)

Image

[1] Shah Bano V. Union of India AIR 1945.

[2] Danial Latifi & Anr. V. Union of India 2001.