A public interest litigation (PIL) has been filed in the Supreme Court seeking uniform grounds of divorce for all citizens of the country without prejudice on the basis of religion, race, caste, sex or place of birth in the spirit of the Articles 14, 15, 21, 44 and international conventions.
The plea was moved by BJP leader and Supreme Court Advocate, Ashwini Kumar Upadhyay asking the Hon’ble Court to direct Centre to take steps to remove anomalies in divorce laws and declare discriminatory grounds of divorce as unconstitutional. The petition stated that "The court may declare that the discriminatory grounds of divorce are violative of Articles 14, 15, 21 and frame guidelines for 'Uniform Grounds of Divorce' for all citizens”. Further, it also suggested the court to direct the Law Commission in order to examine different divorce laws and suggest 'Uniform Grounds of Divorce' for all citizens in the spirit of Articles 14, 15, 21, 44 within three months, while considering international statutes.
The PIL noted distinctions between different religions such as Hindus, Buddhists, Muslims, etc. and their governing laws. It cited examples like Impotency being a ground of divorce for Hindus-Muslims, but not for Christians-Parsis; Underage marriage can be a ground of divorce for Hindus, but not for Christians, Parsis and Muslims; and so forth.
The plea argued that many other grounds of divorce are neither gender-neutral nor religion-neutral, though equity, equality, and equal opportunity are the hallmarks of a socialist, secular, democratic republic like India. "The ongoing distinction is based on a patriarchal mindset and stereotypes and has no scientific backing, perpetrates de jure and de facto inequality against women and goes against the global trends", it added.
The petitioner said, “The facts constituting the cause of action accrued on 13.09.2019 and continue when this Hon'ble Court in Jose Paulo Coutinho Case once again pressed the need of uniform civil laws and cited the example of Goa but Centre even failed to provide uniform grounds of divorce". Further on, while pointing out the complexity and other challenges in divorce procedure for different religions, it also observed that since divorce is among the “most traumatic misfortune” for both men and women, the “injury” because of such arrangement could be very significant.
“Article 14 of the Constitution guarantees equality before the law and equal protection of laws. Article 15 prohibits discrimination on the grounds of religion, race, caste, sex, place of birth, and enables the State to make special provisions for women. Article 16 guarantees equality of opportunity and Article 21 guarantees life and liberty. Article 25 clarifies that freedom of conscience and right to profess, practice, and propagate religion is not absolute and subject to public order, morality, and health.
Article 38 directs the State to eliminate inequalities in status, facilities, and opportunities. Article 39 directs the State to direct its policy towards securing that men-women equally, have the right to an adequate means of livelihood. Article 44 directs the State to implement a uniform civil code for all citizens. Article 46 directs to promote the economic interest of weaker sections and protect them from social injustice and all forms of exploitation.
Moreover, under Article 51A, State is obligated to promote harmony & spirit of common brotherhood amongst all citizens transcending religious linguistic, regional or sectional diversities; renounce the practices derogatory to the dignity of women; and, develop scientific temper humanism and spirit of inquiry and reform.
Furthermore, on 26.11.1949, we the Indians, have solemnly resolved to constitute India, a sovereign socialist secular democratic republic, and to secure to all its citizens: Justice, social economic and political; Liberty of thoughts, expression, belief, faith and worship; Equality of status and of opportunity; and to promote among them fraternity assuring dignity of the individual and the unity and integrity of the nation.”
The petition submitted that the Centre has failed to provide "Uniform Grounds of Divorce" for all citizens throughout the territory of India despite having these well-expressed provisions in the Constitution even after 73-years of Independence.