Uniform laws on marriage, divorce issue for Parliament to decide: Supreme Court

These are matters for Parliament to decide. We cannot make laws. This falls within Parliament’s sovereignty. We cannot tell the Parliament you shall enact a law,” the Supreme Court said on Friday, January 6

Uniform on Marriage

Having uniform laws on marriage, divorce, succession, adoption and maintenance is a matter for Parliament to decide and not for the courts to determine, the Supreme Court said on January 6.

It was a three-judge bench headed by Chief Justice of India (CJI) Dhananjaya Y Chandrachud that was hearing a clutch of petitions, including the one by Bhartiya Janata Party (BJP) leader and lawyer Ashwini Kumar Upadhyay, who filed the petition in 2020 seeking uniform laws on the issue of marriage, divorce, adoption, maintenance and guardianship. The contentious issue of enactment of a “uniform civil code (UCC)” has been a much-touted issue by the ruling Bharatiya Janata Party (BJP).

“This is a matter for Parliament to decide. We cannot make laws. This falls within Parliament’s sovereignty. We cannot tell the Parliament you shall enact a law,” said the bench also comprising justices PS Narasimha and JB Pardiwala, reported Hindustan Times. 

In his petition, Upadhyay had pointed out the dichotomy that exists between laws applicable to different religions on the issue of marriage, divorce, adoption, maintenance and guardianship. Following the original petition, several other petitions were filed, some by Muslim women who were aggrieved by the discriminatory forms of divorce practiced under Muslim personal law.

Senior advocate Huzefa Ahmadi, along with advocate MR Shamshad, appearing for the Muslim Personal Law Board (MPLB), informed the court that Upadhyay in 2015 had raised similar prayers in a writ petition filed in the top court, which he withdrew. He later filed a petition seeking enforcement of a Uniform Civil Code (UCC) before the Delhi high court which is still pending. 

Ahmadi told the court that the petitioner has not mentioned this fact in the present set of petitions. Upadhyay, however, said the present petition filed by him had additional grounds. 

“You (Upadhyay) must disclose (such facts) to the Court and then you may say that you raised additional grounds as well,” the bench said. 

Upadhyay then told the court that these arguments were rejected by the apex court on September 5 last year when a bench headed by then CJI Uday Umesh Lalit recognised the importance of the issue and sought a comprehensive response from the Centre.

The bench told Upadhyay, “We will take this up some other day. But you need to first address us on this preliminary issue. Upadhyay has, even on other issues, followed a similar practice: he has filed a petition on the issue of “forced religious conversions” this year that is being currently heard by the apex court when, a near-identical petition had not just been not entertained but rejected by the Supreme Court, earlier.

In September 2022, the top court had observed, “These petitions are seeking common marriage, divorce, adoption, succession, and maintenance laws. They are all facets of Uniform Civil Code. Let a comprehensive response be filed indicating the stand of the Union government in respect of issues raised in this batch of petitions.” 

Upadhyay requested the bench to consider his other prayer to refer the issue for consideration by the Law Commission of India. The court said, “Even on referring a matter to the Law Commission is in aid of something else. Can the Supreme Court direct that you shall enact a legislation. We will consider this aspect on the next date.”

Interestingly, additional solicitor general (ASG) KM Nataraj, appearing for Centre, agreed with the bench that the matter in these petitions is a subject of legislative policy. “If there is a grievance, considering the gravity of situation, maybe it will be open for the Law Commission to take a call,” he said. 

In his petition, Upadhyay pointed out that while adultery is a ground of divorce for Hindus, Christians and Parsis but not for Muslims. Incurable leprosy is a ground of divorce for Hindus and Christians but not for Parsis and Muslims. Similarly, impotency is a ground of divorce for Hindus and Muslims but not among Christians and Parsis. While under age marriage is a ground of divorce for Hindus but not for Christians, Parsis and Muslims, the petition said.

Further, on adoption, he pointed out that only Hindus have a codified law on adoption and an adopted child under Hindu law has right to inherit property and be recognised as a biological child of the adopted parents. However, this is not so for Muslims, Christians and Parsis, Upadhyay’s petition said. His petition sought to create uniform laws based on “gender justice and equality of all citizens.”




Related Articles