Ahmedabad
Women Action Group (Awag) & Ors Vs. Union of India [1997] INSC 215 (24
February 1997)
CJI,
SUJATA V. MANOHAR, K. VENKATASWAMI VENKATASWAMI.
J.
WITH WRIT PETITION (CIVIL) NO. 196 OF
1996LOK SEVAK SANGH & ORS.V.UNION OF INDIA
WITH WRIT PETITION (CIVIL) NO.
721 OF 1996YOUNG WOMAN CHRISTIAN ASSOCIATION (YWCA) & ORS.V.UNION OF INDIA
ACT:
HEAD NOTE:
All
these Writ Petitions are filed as Public Interest Litigation. In W.P. (C) No.
494/96. the reliefs prayed foe are as follows :
(a) to
declare muslim Personal Law which allows ploygamy as void as offending Articles
14 and 15 of the Constitution;
(b) to
declare Muslim Personal Law which enables a Muslim male to give unilateral Talaq
to his wife without her consent and without resort to judicial process of
courts. as void, offending Articles 13. 14 and 15 of the Constitution;
(c) to
declare that the mere fact that a Muslim husband takes mote than one wife is an
act of cruelty within the meaning of Clause VIII (f) of Section 2 of
Dissolution of Muslim Marriages Act. 1939.
(d) to
declare that muslim Women (Protection of Rights on Divorce Act. 1986 is void as
infringing Articles 14 and 15.
(e) to
further declare that the provisions of Sunni and Shia laws of inheritence which
discriminate against females in their share as compared to the share of males
of the same status. void as discriminating against females only on the ground
of sex.
In
writ Petition (CO No. 196/96. the reliefs prayed for are the following:- (a) to
declare Sections 2(2). 5 (ii) & (iii), 6 and Explanation to Section 30 of
Hindu Succession Act.1956. as
void offending Articles 14 and 15 read with Article 13 of the Constitution of
India:
(b) to
declare Section (2) of Hindu Marriage Act, 1955, as void offending Articles 14
and 15 of the Constitution of India;
(c) to
declare Sections 3 (2), 6 and 9 of Hindu minority and Guardianship Act read
with Sections 6 of Guardians and wards Act void;
(d) to
declare the unfettered and absolute discretion allowed to a Hindu spouse to
make testamentary disposition without providing for an ascertained share of his
or her spouse and dependant. void.
In
writ Petition (C) No. 721/96.
the reliefs
prayed for are following :- (a) to declare Sections 10 and 34 of India Divorce
Act void and also to declare Sections 43 to 48 of Indian Succession Act void.
At the
outset. we would like to state that these Writ Petitions do not deserve
disposal on merits inasmuch as the arguments advanced by the learned Sr.
Advocate before us wholly involve issues of State policies with the Court will
not ordinarily have any concern. Further. We find that when similar attempts
were made, of course by others, on earlier occasions this Court held that the
remedy lies somewhere else and not by knocking at the doors of the courts.
In Maharishi
Avadhesh vs. Union of India (1994 (supp) I SCC /18). This Court white
dismissing a Petition under Article 32 of the Constitution held as follows:-
"This is a petition by party in person under Article 32 of the
Constitution. The praters are two- fold. The first prayer is to issue a writ of
mandamus to the respondents to consider the question of enacting a common Civil
Code for all citizens of India. The second prayer is to declare
Muslim Women Protection of Right on Divorce) Act, 1986 as void being arbitrary
and discriminatory and in violation of Articles 14 and 15 Fundamental Rights
and Articles 44.
38, 39
and 39-A of the Constitution of India. The third prayer is to direct the respondents not to enact Shariat Act
in respect of those adversely affecting the dignity and right of Muslim Women
and against their protection. These are all matters for legislature. The writ
petition is dismissed.
In Reynold
Raiamani and Another vs. Union of India and Another (1982) 2 SCC 474 this Court
while dealing with the scope of sections 7 and 10 of the Indian Divorce Act.
1869 held as follows :-
4. It
cannot be denied that society is generally interested in maintaining the
marriage bond and preserving the matrimonial state with a view to protecting
societal stability, the family home and the proper growth and happiness of
children of the marriage.
legislation
for the purpose of dissolving the marriage constitutes a departure from that
primary principle, and the legislature is extremely circumspect in setting
forth the grounds on which a marriage may be dissolved. The history of all
matrimonial legislation will show that at the outset conservative attitudes
influenced the grounds on which separation or divorce could be granted. Over
the decades, a more liberal attitude has been adopted.
Tostered
by a recognition of the need for the individual happiness of the adult parties
directly involved. But although the grounds for divorce have been liberalised,
they nevertheless continue to form an exception to the general principle favouring
the continuation of the marital tie. In our opinion. When a Legislative
provision specifies the grounds on which divorce may be granted they constitute
the only condition on which the court has jurisdiction to grant divorce. If
grounds need to be added to those already specifically set forth in the legislation,
that is the business of the legislature and not of the courts. It is another
matter that in construing the language in which the grounds are incorporated
the courts should give a liberal construction to It. Indeed. We think tat the
courts must give the fullest amplitude of meaning to such a provision. But it
must be a meaning which the language of the section is capable of holding. It
cannot be extended by adding new grounds not enumerated in the section.
6.
Miss Thomas appeals to us to adopt a policy of social engineering and to give
to Section / the content which has been enacted in Section 28 of the special
Marriage Act. 1958 and Section 18-B of the Hindu Marriage Act, 1955, both of
which provide for divorce by mutual consent. It is possible to say tat the law
relating to Hindu marriages and to marriages governed by the Special Marriage
Act Presents a more advanced stage of development in this area than the Indian
Divorce Act. However. Whether a provision for divorce by mutual consent should
be included in the Indian Divorce Act is a matter of legislative policy. The
courts cannot extend or enlarge legislative policy by adding a provision to the
statute which was never enacted there.
In Pannalal
Bansilal and others vs. State of A.P.
and Another (1990 (2) SCC 498) Validity of Sections 15, 16, 1/.
29(5)
and 144 of the A.P. Charitable Hindu Religions and endowments Act. 1987 were
challenged. Inter alia this Court held :- The first question is whether it is
necessary that the legislature should make law uniformly applicable to all
religions or charitable or public institutions and endowments established or
maintained by people professing all religions. In a pluralist society like India in which people have faith in their
respective religions, people of India professing different religions faiths, born in different castes, sex or
sub-sections in the society speaking different languages and dialects in
different regions and provided a secular Constitution to integrate all sections
of the society as a united Bharat. The directive Principles of the Constitution
themselves visualise diversity and attempted to foster uniformity among people
of different rates. A uniform law.
Though
is .....................
enactment
thereof. In one go perhaps may be counter-productive to unity and integrity of
the nation. In a democracy governed by rule of law. gradual progressive change
and order should be brought about. Making law of amendment to a law is a slow
process and the legislature attempts to remedy where the need is felt most
acute.
It
would, therefore, be inexpedient and incorrect to think that all laws have to
be made uniformly applicable to all people in one go.
The
mischief or defect which is most acute can be remedied by process of law at
stages.
In
State of Bombay vs. Narasu Appa Mali
(AIR 1952 Bombay 84), Chagla, C.J., while considering the validity of the
Bombay Prevention of Hindu Bigamous Marriages Act, 1946, observed as follows :-
"A question has been raised as to whether it is for the Legislature to
decide what constitutes social reform. It must not be forgotten that in
democracy the Legislature is constituted by the chosen representatives of the
people. They are responsible for the welfare of the State and it is for them to
lay down the policy that the State should pursue Therefore. It is for them to
determine what legislation to put up on the statute bock in order to advance
the welfare of the State.
It was
further observed that :- "There can be no doubt that the Muslims have been
excluded from the operation of the Act in question.
Even
Section 494, Penal Code, Which makes bigamy an offence applies to Parsis,
Christians and others, but not to Muslims because polygamy is recognised as a
valid institution when a Muslim male marries more than one wife. The question
that we have to consider is whether there is any reasonable basis for creating
the Muslims as a separate class to which the laws prohibiting polygamy should
not apply. Now. It is an historic fact that both the Muslims and the Hindus in
this country have their respective religious texts and which embody their own
distinctive evolution and which are coloured by their own distinctive
backgrounds. Article 44 itself recognises separate and distinctive personal
laws because it lays down as a directive to be achieved that within a
measurable time India should enjoy the privilege of a
common uniform Civil Code applicable to all its citizens irrespective of race
or religion.
Therefore,
what the Legislature has attempted to do by the Hindu Bigamous Marriages Act is
to introduce social reform lin respect of a particular community having its own
personal law. The institution of marriage is differently looked upon by the
Hindus and the Muslims. Whereas to the former, it is a sacrament, to the latter
it is a matter of contract. That is also the reason why the question of the
dissolution of marriage is differently tackled by the two religions. While the
Muslim law admits of easy divorce, Hindu marriage is considered indissoluble
and it is only recently that the State passed legislation permitting divorce
among Hindus. The State was also entitled to consider the educational
permitting divorce among Hindus. The State was also entitled to consider the
educational development of the two communities. One community might be prepared
to accept and work social reform; another may not yet be prepared for it: and
Art. 14 does not lay down that any legislation that the State may be communitywise.
From these considerations it follows that if there is a discirmination against
the Hindu in the applicability of the Hindus Bigamous Marriages Act.
that
discrimination is not based only upon ground of religion.
Equally
so if the law with regard to bigamous marriages is not uniform, the difference
and distinction is not arbitrary or capricious, but is based upon reasonable
grounds.
Gajendragadkar
J., in his concurrent but separate opinion expressed the same view by observing
as follows:- "The next question is whether this Act discriminates against
the Hindus in reference to the Christian and the Parsi citizens of this State,
in so the specially severe provisions as to punishment and procedure. It is
true that whereas under the general criminal law the offence of bigamy is
cognizable only on the complaint of the wife, the impugned Act makes it
cognizable so that the complaint of the wife, is unnecessary to start the
proceedings against the offending husband. The offence of bigamy is
compoundable under the general criminal law: but not under the impugned Act ;
and the word "abettor under the impugned Act is also wider than this
question, however, it must be remembered that the evil of bigamy prevailing
amongst the Hindus could not be effectively put down unless the offence was
made cognizable and unless amongst the abettors were included ever the priests
who officiate at Hindu Marriages. As I have already mentioned, Hindu marriage
is a love and devotion of the Hindu wife for her husband id well known.
Legislature may well have thought that it would be futile to make the offence
of Hindu bigamy punishable at the instance of the wife because Hindu wives may
not come forward with any complaint at all. Among the Christians and the Parsis,
monogamy has been practised for several years and marriage amongst them is a
matter of contract. Amongst them divorce is permissible, whereas amongst the
Hindus it was not permissible for so many years. If the Legislature acting on
these considerations wanted to provide for a special procedure in dealing with
bigamous marriages amongst the Hindus it cannot be said that the Legislature
was discriminating against the Hindus only on the ground of religion. It was
for the Legislature to take into account the social customs and beliefs of the
Hindus and other relevant considerations before deciding whether it was
necessary to provide for special provisions in dealing with bigamous marriages
amongst them. That clearly is the province of the Legislature and with the
propriety of their views or their wisdom Courts are not concerned. I, therefore,
hold that there is no substance in the argument that the penal provisions of
the impugned Act constitute discrimination against the Hindus only on the
ground of religion.
There
is one more point with which I would like to deal. It has been argued before us
that the impugned Act should have been made State of Bombay. It is said that if
the impugned Act constitutes a measure of social reform. There is no reason why
the State Legislature should not have given the Mahomedan community the benefit
of this social reform. The Union of India is a secular State and the State
Legislature was wrong in making a distinction between its citizens on the
ground of religious differences and in applying the provisions of the impugned
Act only to Hindus. In part this argument is political and as such we are not
concerned with it. But part of the argument is based upon the provisions of
Article 14 of the Constitution of India and it is necessary to deal with this
aspect of the argument.
The
learned judge further observed as follows :- "But it is argued that even
as to this social reform, the State Legislature should have made it all
pervasive and should not have left the Mahomedans outside its ambit.
That. as
I have already said, is partly a political, and partly a legal argument.
Whether it was expedient to make this Act applicable to the Mahomedans as well
as to the Hindus would be a matter for the Legislature to consider. It is now
well settled that the equality before the law which is guaranteed by Article 14
is not offended by the impugned Act if the Classification which the Act makes
is based on reasonable and rational considerations. It is not obligatory in
taking gradual steps for social welfare and reform does not introduce
distinctions or classifications which are unreasonable, irrational or
oppressive, it cannot be said that the equality before law is offended. The
State Legislature may have thought that the Hindu community was more ripe for
the reform in question. Social reformers amongst the Hindus have years past and
the social conscience of the Hindus, according to the Legislature, may have
been mire in tune with the spirit of the proposed reform. Besides, amongst the Mahomedans
divorce has always been permissible and marriage amongst them is a matter of
contract. If the State Legislature acting on such considerations decided to
enforce this reform in the first instance amongst the Hindus, it would be
impossible in my opinion to hold that in confining the impugned Act to Hindus
as defined by the Act, it has violated the equality before law as guaranteed by
Article 14. In my opinion, therefore, the argument that Article 14 is violated
by the impugned Act mus fail." Gajendragadkar j. also expressed his
opinion on the question whether Part III of the Constitution applies to
personal laws. The learned Judge observed as follows :- "The Constitution
of India itself recognises the existence of these personal laws in terms when
it deals with the topic falling under personal law in item 5 in the Concurrent
List-List III. This item deals with the topics of marriage and divorce; infants
and minors;
adoption;
wills, intestacy and succession; joint family and partition; all matters in
respect of which parties in judicial proceedings were immediately before the
commencement of this Constitution subject to their personal law. Thus it is
competent either to the State or the Union Legislature to legislate on topics
falling within the purview of the personal law is not used in Art.
13,
because, in my opinion, the framers of the Constitution wanted to leave the
personal laws outside the ambit of Part III of the Constitution. They must have
been aware that these personal laws needed to be reformed in many material
particulars and in fact they wanted to abolish these different personal laws
and to evolve one common code. Yet they did not wish that the provisions of the
personal laws should be challenged by reason of the fundamental rights
guaranteed in Part III of the constitution and so they did not intend to
include these personal laws within the definition of the expression laws in
force. Therefore, I agree with the learned Chief Justice in holding that the
personal laws do not fail within Article 13(i) at all." In Krishna Singh
vs. Mathura Ahir and others (AIR 1980 SC 707) this Court while considering the
question whether a Sudra could be ordained to a religious order and become a Sanyasi
or Yati and, therefore, installed as a Mahant of the Garwaghat Math according
to the tenets of the Sant Mat Sampradaya, inter alia held as follows :- "It
would be convenient, at the outset, to deal with the view expressed by the High
Court that the strict rule enjoined by the Smriti writers as a result of which Sudras
were considered to be incapable of entering the order of yati or sanyasi, has
ceased to be valid because of the fundamental rights guaranteed under Part III
of the Constitution. In our opinion, the learned Judges failed to appreciate
that Part III of the Constitution does not touch upon the personal laws of the
parties.
In
applying the personal laws of the parties. he could not introduce his own
concepts of the law as derived from recognised and authoritative sources of
Hindu law, i.e. Smritis and commentaries referred to, as interpreted in the
judgment of various High Courts, except where such law is altered by any usage
or custom or is modified or abrogated by statute, In Sarla Mudgal and others
vs. union of India and Others (1995) 3 SCC 635 this Court observed :-
"Article 33 is based on the concept that there is no necessary connection
between religion and personal law in a civilised society. Article 25 guarantees
religious freedom whereas Article 44 seeks to divest religion from social
relations and personal law.
Marriage,
succession and like matters of a secular character cannot be brought within the
guarantee enshrined under Article 25, 26 and 27. The personal of the Hindus. such
as relating to marriage, succession and the like have all a sacramental origin.
In the same manner as in the case of the Muslims or the Christians. The Hindus
along with Sikhs, Buddhists and Jains have forsaken their sentiments in the
cause of the national unity and integration, some other communities would not,
though the Constitution enjoins the establishment of a "common civil
code" for the whole of India.
However,
none of the decisions referred to above were placed before the Division Bench
as they find no mention in the separate judgments of Kuldip Singh, J. and R.M. Sahai,
J. That is because there was no occasion to consider whether Part III of the
constitution of India had any application to personal
laws or not. Suffice it to say that we are satisfied that the arguments
advanced before us as pointed out at the outset involve issues. in our opinion,
to by dealt with by the legislature.
We may
further point out that the question regarding the desirability of enacting a
Uniform Civil Code did not directly arise in that case. The questions which
were formulated for decision by Kuldip Singh, J. in his judgment were these :
"[W]hether
a Hindu husband, married under Hindu law, by embracing Islam, can solemnise
second marriage? Whether such a marriage without having the first marriage
dissolved under law, would be a valid marriage dissolved under law, would be a
valid marriage dissolved under law, would be a valid marriage qua the first
wife who continues to be Hindu? Whether the apostate husband would be guilty of
the offence under Section 494 of the Indian Penal Code (IPC)?" Sahai. J.
in his separate but concurring judgment referred to the necessity for a Uniform
Civil Code and said:
"The
desirability of Uniform Code can hardly be doubted. But it can concretize only
when social climate is properly built up by elite of the society; statesmen
amongst leaders who instead of gaining personal mileage rise above and awaken the
masses to accept the change." Sahai. J. was of the opinion that while it
was desirable to have a Uniform Civil Code, the time was yet not ripe and the
issue should be entrusted to the Law Commission which may examine the same in
consultation with the Minorities Commission. That is why when the Court drew up
the final order signed by both the learned Judges it said "the writ
petitions are allowed in terms of the answer to the questions posed in the
opinion of Kuldip Singh, J." These questions we have extracted earlier and
the decision was confined to conclusions reached thereon whereas the
observations on the desirability of enacting the Uniform Civil Code were
incidentally made.
In Madhu
Kishwar & Others vs. State of Bihar & Others (1996 (5) SCC 125). this Court while considering the
challenge made to certain provisions of the Chotanagpur Tenancy Act, 1908,
observed as follows:- "It is worthwhile to account some legislation on the
subject. The Hindu Succession Act governs and prescribes rules of succession
applicable to a large majority of Indians being Hindus, Sikhs, Buddhists, Jains
etc. whereunder since 1956, if not earlier, the female heir is put on a par
with a male heir. Next in the line of numbers is the Shariat law, applicable to
Muslims, whereunder the female heir has an unequal share in the inheritance, by
and large half of what a male gets.
Then comes
the Indian Succession Act which applies to Christians and by and large to
people not covered under the aforesaid two laws, conferring in a certain manner
heirship on females as also males.
Certain
chapters thereof are not made applicable to certain communities. Sub-section
(2) of Section 2 of the Hindu Succession Act significantly provides that
nothing contained in the Act shall apply to the members of any Scheduled Tribe
within the meaning of clause (25) of Article 366 of the Constitution, unless
otherwise directed by the Central Government by means of a notification in the
Official Gazette. Section 3(2) further provides that in the Act, unless the context
otherwise requires, words importing the masculine gender shall not be taken to
include females. General rule of legislative practice is that unless there is
anything repugnant in the subject or context, words importing the masculine
gender shall not be taken to include females. General rule of legislative
practice is that unless there is anything repugnant in the subject or context,
words importing the masculine gender used in statutes are to be taken to
include females.
Attention
be drawn to Section 13 of the General Clauses Act. But in matters of succession
the general rule of plurality would have to be applied with circumspection. The
afore provision thus appears to have been inserted ex abundanti cautela. Even
under Section 3 of the Indian Succession Act, the State Government is empowered
to exempt any race, sect or tripe from the operation of the Act and the tribes
of Mundas, Oraons, Santhals etc. in the State of Bihar, who are included in our
concern, have been so exempted. Thus neither the Hindu Succession Act, nor even
the Shariat law is applicable to the custom-governed tribals. And custom, as is
well recognized, varies from people to people and region to region."
"In the fact of these divisions and visible barricades put up by the
sensitive tribal people valuing their own customs, traditions and usages,
judicially enforcing on them the principles of personal laws applicable to
others, on an elitist approach or on equality principle, by judicial activism,
is a difficult and mind-boggling effort. Brother K. Ramaswamy, J.
seems
to have taken the view that Indian legislatures (and Governments too) would not
prompt themselves to activate in this direction because of political reasons
and in this situation, an activist court. apolitical as it avowedly is, could
get into action and legislate broadly on the lines as suggested by the
petitioners in their written submissions. However laudable, desirable and
attractive the result may seem, it has happily been viewed by our learned
brother that an activist court is not fully equipped to cope with the details
and intricacies of the legislative subject and can at best advise and focus
attention on the State polity on the problem and shake it from its slumber,
goading it to awaken, march and reach the goal. For, in whatever measure be the
concern of the court, it compulsively needs to apply, motion, described in
judicial parlance as self- restraint. We agree therefore with brother K. Ramaswamy,
J. as summed up by him in the paragraph ending on p.36 (para 46) of his
judgment that under the circumstances it is not desirable to declare the
customs of tribal inhabitants as offending Articles 14, 45 and 21 of the
Constitution and each case must be examined when full facts are placed before
the court.
With
regard to the statutory provisions of the Act, he has proposed to the reading
down of Sections 7 and 8 in order to preserve their constitutionality.
This
approach is available from p.36 (paras 47, 48) onwards of his judgment. The
words "male descendant wherever occurring , would include "female
descendants".
It is
also proposed that even though the provisions of the Hindu Succession Act, 1925
in terms would not apply to the Schedule Tribes, their general principles
composing of justice, equity and fair play would apply to them. On this basis
it has been proposed to take the view that the Scheduled Tribe women would
succeed to the estate of paternal parent, brother or husband as heirs by
intestate succession and inherit the property in equal shares with the male
heir with absolute rights as per the principles of the Hindu Succession Act as
also the Indian Succession Act. However, much we may like the law to be so we
regret our inability to subscribe to the means in achieving such objective. If
this be the route of return on the court's entering the thicket, it would
follow a beeline for similar claims in diverse situations, not stopping at
tribal definitions, and a deafening uproar to bring other systems of law in
line with the line with the systems of law in line with the Hindu Succession
Act and the Indian Succession Act as models. Rules of succession are, indeed
susceptible of providing differential treatment, not necessarily equal.
Non-uniformities would not in all events violate Article 14. Judge-made
amendments to provisions, should normally be avoided. We are thus constrained
to take this view. even though it may appear to be conservative for adopting a
cautious approach, and the one proposed by our learned brother is, regretfully
not acceptable to us," As a matter of fact the constitutionality of
section 10 of the Indian Divorce Act was challenged by an aggrieved husband and
this Court in Anil Kumar Mahsi vs. Union of Indian of India and Another (1994)
5 SCC 704 held follows :- "Taking into consideration the muscularly weaker
physique of the woman, her general vulnerable physical and social condition and
her defensive and non-aggressive nature and role particularly in this country,
the legislature can hardly be faulted if the said two grounds are made
available to the wife and not to the husband for seeking dissolution of the
marriage. For the same reasons, it can hardly be said that on that account the
provisions of Section 10 of the Act are discriminatory as against the husband.
We,
therefore, find that there is no substance in the challenge by the
petitioner-husband to the vires of the provisions of Section 10 as being
discriminatory against the husband and, therefore. violative of Article 14 of
the Constitution." So far as the challenge to the Muslim Women (Protection
of Rights on Divorce) Act, 1986 is concerned, we understand that the said issue
is pending before the Constitution Bench. we, therefore, do not see any reason
to multiply proceedings in that behalf.
In the
result and having regard to the earlier decisions of this Court noticed above,
we decline to entertain these writ petitions. Accordingly, these writ petitions
are dismissed.
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