Wednesday, September 28, 2022

Uniform Civil Code: Transfer petition filed in Supreme Court to move PIL pending in Delhi HC

It was pointed out in PIL that, the basis of divorce is not the same for everyone. A Muslim can divorce his wife on the basis of adultery but the wife cannot divorce her husband.

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A transfer petition has been filed in the Supreme Court by Senior Advocate and BJP leader Ashwini Kumar Upadhyay seeking the transfer of a PIL pending in the Delhi High Court concerning a potential Uniform Civil Code.

The plea in the High Court seeks a direction to the Centre to constitute a Judicial Commission or High-Level Expert Committee to prepare a draft Uniform Civil Code/Indian Civil Code, in the spirit of Articles 14, 15, 21, 44 of the Constitution and international conventions to secure gender justice, gender equality, and dignity of women.

Upadhyay said he had filed the PIL in Delhi High Court to weed out anomalies in minimum age of marriage, grounds of divorce, maintenance-alimony, adoption-guardianship, succession-inheritance and the differences based on patriarchal stereotypes, have no scientific backing, perpetrate de jure and de facto inequality against women, and go against global trends.

According to the PIL, Muslim personal law allows polygamy while other religions don’t. Even in the case of infertility, Christians, Hindus, Parsis are forbidden from marrying again by Section 494 of the Indian Penal Code. This also leads to religious conversions as people convert to Islam in order to re-marry. Even Islamic nations do not permit second marriage without the first wife’s consent. Polygamy is not a religious issue, rather an issue of civil and human rights. Therefore, Section 494 of the IPC must be neutral of religion and gender.

The minimum age of marriage is not the same for men-women. The age of adulthood of Muslim girls is not fixed and the girl is considered eligible for marriage at the beginning of her periods, hence girls are married at the age of 11-12 years, whereas in other religions, the minimum age of marriage of girls is 18 years and the minimum age of marriage of boys is 21 years. It is necessary to state that WHO has stated many times that a girl is not physically and mentally mature for marriage before the age of 20 and pregnancy before 20 is extremely harmful to both mother and child. Moreover, children who complete graduation after 20 years, also not financially self-reliant. So, it is necessary to make the minimum age of marriage 21 years, the PIL claimed.

It was alleged in the PIL that despite the fact that triple talaq has been declared illegal, talaq-e-Hasan and talaq-e-Ahsan are still valid. They are also not obligated to state the basis of divorce and only have to wait for 3 months but in other religions, oral divorce is not possible.

In Muslim law, the system of succession and inheritance is highly complex, and, there is excessive discrimination between sons and daughters in parental property. In other religions also, the rights of the wife in post-marriage property and succession and inheritance are undefined. Though, these are also a matter of civil and human rights, highlighted the PIL.

It was pointed out in PIL that, the basis of divorce is not the same for everyone. A Muslim can divorce his wife on the basis of adultery but the wife cannot divorce her husband. In Hindus, Parsis and Christians, fornication is not a ground for divorce. Divorce can occur in Hinduism and Christianity on the basis of incurable diseases like leprosy but not in Parsi and Muslim religions. Marriage may break in Hinduism on the basis of marriage at an early age but it is not possible in Parsis, Christians and Muslims. ‘Grounds of Divorce’ is not in any way a religious matter but is a matter of civil rights and human rights under Article 25, so it should be completely gender-neutral and religion-neutral.

“Adoption-guardianship also differs for Hindu, Muslim, Zoroastrian, Christians. Muslim cannot adopt and adoption is male dominant in other religions. Grounds of adoption-guardianship is not a religious matter by any means but a matter of civil right and human right, so, it should also be completely gender-neutral and religion-neutral,” the petition said.

It was urged by the petitioner, that the Supreme Court and High Court may direct the Centre to constitute a Judicial Commission or Expert Committee to study the Uniform Civil Code of developed countries and the laws applicable in India and make public a draft of the ‘Indian Civil Code’, combining the good of all, public discussion could begin on this subject. It is necessary to state that five PILs seeking the uniform minimum marriage age, uniform divorce grounds, uniform maintenance-alimony, uniform adoption-guardianship, and uniform succession inheritance are pending in the Supreme Court.

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“The discrimination between a girl and a boy was not established by ‘God’ but by man himself. The discrimination is not a result of customs, religious rites, and rituals but of male supremacy and ego, which made them oppress women. Relating this discrimination to religion is unethical, immoral and wrong,” reads the PIL.

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