Advocate Ashwini Kumar Upadhyay  has filed a Writ Petition [Ashwini Kumar Upadhyay v. UOI and Ors.]  under Article 32 of the Constitution of India, seeking directions to Centre, to formulate ‘Uniform Grounds of Divorce’ for all citizens throughout the territory of India, in the spirit of Articles 14, 15, 21, 44 of the Constitution and International Conventions. He prayed that being the sentinel on the qui vive, the Court may declare the discriminatory grounds of divorce as unconstitutional and  frame guidelines for uniform grounds of divorce thereby removing the discriminatory procedure prevailing in different communities.

Petitioner contended that even after 73 years of independence, divorce procedures remain very complex and are neither gender nor religion-neutral.  Different grounds of divorce reinforced patriarchal and stereotypical notions about women. He quotes the following instances:

  • Adultery is a ground of divorce for Hindus, Christians and Parasis but not for Muslims.
  • Incurable Leprosy is a ground of divorce for Hindus and Christians but not for Parsis & Muslims.
  • Impotency is a ground of divorce for Hindus-Muslims but not for Christian-Parsis.
  • Under Age Marriage is a ground of divorce for Hindus but not for Christians, Parsis and Muslims.
  • Similarly, many other grounds of divorce are neither gender-neutral nor religion-neutral,
  • The Hindus, Buddhists, Sikhs, and Jains have to seek divorce under the Hindu Marriage Act,1955.
  • Muslim, Christian, and Parsis  seek divorce under their respective personal laws.
  • Couple belonging to different religion has to seek divorce under the Special Marriage Act, 1956.
  • If either partner is a foreign national then the couple is bound to seek divorce under the Foreign Marriage Act, 1969.

He pointed out the concern of minimum marriageable age, grounds of divorce, custody, guardianship, adoption, maintenance, succession, and inheritance, are the secular matters. He stressed on the fact that equity, equality, and equal opportunity are the hallmarks of a socialist, secular, democratic, republic like ours. Therefore, it is the duty of the State to ensure that men and women have uniform age of marriage, grounds of divorce, maintenance and alimony, succession and inheritance, adoption, and guardianship in the spirit of Articles 14, 15 21 of the Constitution and International Conventions.

The distinction is based on patriarchal and stereotypes and has no scientific backing, perpetrates de jure and de facto inequality against women and goes against the global trends and constitutional rights of a person. The complex procedures of Divorce has proved to be the most traumatic misfortunes,  for all citizens of India.

He argued  that the Hon’ble Court has itself pressed for the need for Uniform Civil Laws in the case of  Jose Paulo Coutinho v. Maria Luzia Valentina Pereria[1] and has in  a plethora of cases directed the Law Commission of India to prepare a report on the said issue.

                                       

This news item has been authored by Ms. Suheena, Website Content Creator for Mylawman.

 

 

 


[1] (2019) SCC Online 1190