PETITIONER:
AHMEDABAD WOMEN ACTION GROUP (AWAG) & ORS.
Vs.
RESPONDENT:
UNION OF INDIA
DATE OF JUDGMENT: 24/02/1997
BENCH:
CJI, SUJATA V. MANOHAR, K. VENKATASWAMIW I T HWRIT PETITION (CIVIL) NO. 196 OF 1996LOK SEVAK
SANGH & ORS.V.UNION OF INDIAW I T HWRIT PETITION (CIVIL) NO. 721 OF 1996YOUNG WOMAN CHRISTI
AN ASSOCIATION (YWCA) & ORS.V.UNION OF INDIA
ACT
HEADNOTE
JUDGMENT
JUDGMENT VENKATASWAMI. J.
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.