AshwiniKumarUpadhyay WPC 202 of 2018

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IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION WRIT
PETITION (CIVIL) NO 202 OF 2018
(UNDERARTICLE32 OF THECONSTITUTION OF INDIA)
IN THE MATTER OF:
ASHWINI KUMAR UPADHYAY …PETITIONER
VERSES
UNION OF INDIA& ANOTHER ...RESPONDENTS
PAPER BOOK
[FOR INDEX KINDLY SEEINSIDE]
(ADVOCATE FOR PETITIONER: R.D.UPADHYAY)

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SYNOPSIS
On 16.10.2015, while deciding the Civil Appeal - 7217/2013 [Prakash &
others v. Phulavati & others], this Hon‘ble Court ordered registration of a
PIL [Suo Motu Writ (Civil) 2 of 2015] to consider gender discrimination
suffered by Muslim women owing to “arbitrary divorce and second
marriage of their husbands during the currency of their first marriage”.
This comes 30 years after this Hon‘ble Court urged the Centre
government to frame a uniform civil code to “help in the cause of national
integration” in the Shah Bano case.
Issuing notices to Attorney General of India and National Legal
Services Authority of India, the Division Bench of Justice Anil Dave and
Justice Adarsh Kumar Goel sought their reply by 23.11.2015 on a
question as to if “gender discrimination suffered by Muslim women should
not be considered a violation of the fundamental rights under Articles 14, 15
and 21 of the Constitution and international covenants”.
The verdict dated 16.11.2015 refers to dozens of its own judgments
since 1990 in order to record the Apex Court‘s growing realization that
gender discrimination is a violation of the constitutional rights of women.
Writing the judgment, Hon‘ble Justice Goel said - the decision to consider the
rights of Muslim women came up during discussions with lawyers on
gender discrimination at the hearing of a batch of civil appeals on the issue of
a daughter‟s right to equal shares in ancestral property under the Hindu
succession law. The judgment said:

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“An important issue of gender discrimination which, though not directly
involved in this appeal, has been raised by some of the learned counsel for the
parties which concerns rights to Muslim women. Discussions on gender
discrimination led to this issue also. It was pointed out that in spite of
guarantee of the Constitution; Muslim women are subjected to
discrimination. There is no safeguard against arbitrary divorce and
second marriage by her husband during the currency of the first marriage,
resulting in denial of dignity and security to her. It is pointed out that the
matter needs consideration by this court as the issue relates not merely to
policy matter but to fundamental rights of women under Articles 14, 15 and 21
of the Constitution and international conventions andcovenants.”
The Hon‘ble Justice Goel noted that recent judgments, like Javed
vs. State of Haryana in 2003 in which a three-judge Bench of this Hon‘ble
Court intervened in personal law to uphold the dignity of women, shows
the change in attitude. It is pertinent to state that in the Javed case, the
Court held that “polygamy is injurious to public morals and can be
superseded by the State just as practice of „Sati‟.”
Hon‘ble Justice Goel referred to the John Vallamattom case
judgment of 2003, which said ―laws dealing with marriage and succession
are not part of religion.‖ Finally, Justice Goel refers to the 2015
judgment in the Charu Khurana case, in which the court struck against
gender discrimination shown to women make-up artists in the film
industry.
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On 17.05.2016, petitioner submitted a representation to the
Government to constitute Expert Committee or Judicial Commission
to draft a Uniform Civil Code in spirit of Article
44 of the Constitution. On 01.07.2016, Central Government asked the
Law Commission of India to examine issue of Uniform Civil Code in
spirit of Article 44 of Constitution.
On O7.10.2016, the Law Commission of India sought public
opinion on the exercise of revising and reforming family laws in the
context of Article 44 of the Constitution.
On 15.11.2016, Petitioner filed an application for impleadment as
Co-petitioner (IA-85002/2016), which was registered as IA-19 in
SMW(C) 2/2015 and on 12.05.2016, Senior Advocate V. Shekhar argued
for petitioner.
On 22.8.2017, this Hon‘ble Court in SMW(C) 2/2015 has held that
Section 2 of the Muslim Personal Law (Shariat) Application Act,1937, is
arbitrary and violative of Articles 14, 15 and 21 of the Constitution,
insofar as it seeks to recognize practice of Talaq-Ul-Biddat. Similarly,
Nikah-Halala and Polygamy is also unconstitutional and violative of
Articles 14, 15 and 21 of the Constitution. But, Executive has not declared
that Triple Talaq, Polygamy and Nikah Halala are offence under Sections
498A, 375 and 494 of the IPC, respectively.
Polygamy and Nikah-Halala is injurious to public order, morality
and health also. Thus, can be superseded by the State just it prohibited
human sacrifice or practice of sati. But, Executive is inactive. Hence, this
petition in public interest.

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LIST OF DATES
16.10.2015: The Division Bench of this Hon‘ble Court, while deciding the
Civil Appeal No-7217/2013, Prakash & Others v.
Phulwati & Others, taken suo-motu cognizance of
genderdiscrimination.
17.05.2016: Petitioner submitted a Representation to the Government
to constitute Expert Committee
/Judicial Commission to draft Uniform Civil Code in
spirit of Article 44 of the Constitution.
01.07.2016: The Central Government asked the Law Commission to
examine issue of Uniform Civil Code in spirit of Article
44 of the Constitution.
O7.10.2016: Law Commission sought public opinion on the exercise of
revising and reforming family laws in context of Article
44 of the Constitution.
15.11.2016: Petitioner filed application for impleadment as Co-petitioner
(IA-85002/2016), which was registered as IA-19 in
SMW(C)2/2015.
12.05.2016: Sr. Advocate V. Shekhar argued for petitioner.
22.08.2017: This Hon‘ble declared Section 2 of the Muslim Personal Law
Application Act,1937, arbitrary insofar as it seeks to
recognizeTalaq-Ul-Biddat.
05.03.2018: Polygamy and Nikah-Halala is violative of the Articles 14,
15 and 21. But, Government has declared them an
offence under the IPC. Hence, this petition in larger
public interest.
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IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION WRIT
PETITION (CIVIL) NO 202 OF 2018
(UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA)
IN THE MATTER OF:
Ashwini Kumar Upadhyay
S/o Sh. Suresh Chandra Upadhyay Office: 15, M.C.
Setalvad Chambers Block
Supreme Court of India, New Delhi-110001
Residence: G-284, Govindpuram, Ghaziabad ...Petitioner
Verses
1. Union of India Through the
Secretary,
Ministry of Law and Justice, Shashtri
Bhawan, New Delhi-110001
2. Law Commission of India
Through the Chairman,
4th Floor, B-Wing, Loknayak Bhawan,
Khan Market, New Delhi-110003 ……Respondents
WRIT PETITION UNDER ARTICLE 32 TO DECLARE SECTION 2 OF THE MUSLIM PERSONAL

LAW (SHARIAT) APPLICATION ACT, 1937, UNCONSTITUTIONAL AND VIOLATIVE OF
ARTICLES 14, 15 AND 21 OF THE CONSTITUTION INSOFAR AS IT SEEKS TO RECOGNIZE
AND VALIDATE THE PRACTICE OF POLYGAMY AND NIKAH-HALALA;
To,
THE HON‘BLE CHIEF JUSTICE
& LORDSHIP‘S COMPANION JUSTICES OF
HON‘BLE SUPREME COURT OF INDIA
HUMBLE PETITION OF ABOVE-NAMED PETITIONER THEMOST
RESPECTFULLYSHOWETHASUNDER:
1. Petitioner is filing this writ petition under Article 32 to declare Section 2 of
the Muslim Personal Law (Shariat) Application Act, 1937,
unconstitutional and violative of Articles 14, 15 and
21 of the Constitution, insofar as it seeks to recognize and validate the
practice of Polygamy and Nikah-Halala.
2. Petitioner has not filed any other petition either in this Hon‘ble Court or in
any other High Court seeking same and similar directions as prayed in
this writ petition.

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3. Petitioner‘s full name is Ashwini Kumar Upadhyay. Residential address is
Petitioner
is an Advocate & social-political activist, contributing his best to
development of socially-economically downtrodden people.
4. The facts constituting cause of action accrued on 22.08.2017 and every
subsequent date, when this Hon‘ble Court declared Triple-Talaq void and
unconstitutional. But, the Executive has neither taken steps to prohibit
Triple-Talaq, Nikah-Halala and Polygamy nor declared them an offence
under the IPC, 1860.
5. The injury caused to the women as practice of Triple-Talaq, Polygamy
and Nikah-Halala is violative of Articles 14, 15 and 21 of the Constitution
and injurious to public order, morality and health. However, police does
not lodge FIR under Sections 498A, 494 and 375 of the IPC respectively for
these offences.
6. Petitioner has no personal interests, individual gain, private motive or
oblique reasons in filing this petition. It is not guided for gain of any other
individual person, institution or body.
7. There is no civil, criminal or revenue litigation, involving petitioner,
which has or could have legal nexus, with the issue involved in this writ
petition. It is totally bona-fide.
8. There is no reason to move concerned government authority for relief
sought in this petition because it has not taken steps on petitioner‘s
representation dated 28.8.2017. There is no other remedy available
except approaching thisHon‘bleCourt.

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9. Petitioner is filing this writ petition under Article 32 of the Constitution
seeking a writ, order or direction or a writ in the nature of mandamus to
declare Section 2 of the Muslim Personal Law (Shariat) Application Act,
1937, unconstitutional and violative of Articles 14, 15 and 21 of the
Constitution, insofar as it seeks to recognize Polygamy and Nikah-Halala.
10. It is well settled that Common Law has primacy over the
Personal Laws. Hence, this Hon‘ble Court may declare that –
―Triple Talaq is cruelty under Section 498A of the IPC, 1860, Nikah-Halala is
Rape under Section 375 of the IPC,1860, and Polygamy is an offence under
Section 494 of the IPC,1860”.
11.The Laws dealing with marriage and succession are not a part of religion,
law has to change with time, and international covenants and treaties
could be referred to examine validity and reasonableness of a provision.
Accordingly, this Hon‘ble Court directed that the issue of gender
discrimination against Muslim women under Muslim personal laws,
specifically, the lack of safeguards against arbitrary divorce and second
marriage by a Muslim husband during the currency of first marriage
notwithstanding the guarantees of the Constitution, was registered as a
public interest litigation and five Judges Bench pronounced the
judgment on 22.8.2017.
12. Practice of Polygamy and Nikah-Halala is injurious to
basic rights guaranteed under Articles 14, 15, 21 and public order,
morality and health. Hence, can be superseded by the State just it
prohibited human sacrifice or the practice of Sati.

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13.This Hon‘ble Court in Triple Talaq Case [SMW(C) 2/2015] has held that
practices permitted or not prohibited by religion do not become a
religious practice or a positive tenet of the religion and a sinful practice
does not acquire the sanction of religion merely because it is practiced
since long time.
14.It is submitted that ban on Polygamy and Nikah-Halala has been the need
of the hour to secure basic rights and in the interest of public order,
morality and health. This Hon‘ble Court has already expressed the view
that Oral Talaq is not an integral part of religion and Article 25 merely
protects religious faith, but not the practices, which may run counter to
public order, morality and health and fundamentalrights.
15.Presently, once a Muslim woman has been divorced, her husband is not
permitted to take her back even if he had pronounced Talaq under
influence of any intoxicant, unless his wife undergoes Nikah-Halala,
which involves her marriage with another man, who subsequently
divorces her so that her previous husband can re-marry her. This
unfortunate practice was highlighted by the media in the case of Nagma
Bibi of Orissa, whose husband divorced her in the spur of the moment in
a drunken state and wanted her back the next morning, when he
realized that he had committed a mistake. Unfortunately, she was
prevented by her community‘s religious leaders, who forcibly sent her
with three children to her father‘s house suggesting that she will have to
undergo Nikah-Halala before she can re-unite with her husband.

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16.Polygamy is practice that has been recognized as an evil plague similar to
sati and has been banned under Section 494 of the IPC. Unfortunately,
even in 21st century, it continues to vex Muslim women notwithstanding
that such practice poses extremely serious health, social, economic,
moral and emotional injury. It is submitted that religious leaders and
priests like imams, maulvis, etc. who propagate, support and authorize
practices like Talaq-E-Bidat, Nikah-Halala and Polygamy are grossly
misusing their position, influence and power to subject Muslim women to
such gross practices which treats them as chattel, thereby violating their
basic rights enshrined in Articles 14, 15 and 21 of the Constitution.
17. It has been noted in Sarla Mudgal case that bigamous
marriage has been made punishable amongst Christians by the Christian
Marriage Act, 1872, (No. XV of 1872), amongst Parsis by the Parsi
Marriage Act, 1936 (No. III of 1936), and amongst Hindus, Buddhists,
Sikhs and Jains by the Hindu Marriage Act, 1955 (No. XXV of 1955).
However, Dissolution of Muslim Marriages Act, 1939 does not secure for
Muslim women the protection from bigamy, which has been statutorily
secured for women belonging to other religion. The citizens, who follow
religion other than Islam traditionally, practiced polygamy, but the same
was prohibited not only because laws dealing with marriage are not a
part of religion, but also because the law has to change with time and
ensure a life of dignity unmarred by discrimination on the basis of gender.

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18.The Constitution has primacy over the Common Law and Common Law
has primacy over Person Laws. So, India doesn‘t need another personal
law on Talaq, Polygamy and Halala.
19.It is submitted that the failure to secure the same equal rights and life of
dignity for Muslim women violates their most basic human and
fundamental right to life of dignity unmarred by gender discrimination,
which in turn have a critical impact on their social and economic rights to
say the least.
20.In 2015, A high-level committee titled “Women and the law: An
assessment of family laws with focus on laws relating to marriage, divorce,
custody, inheritance and succession”, set up by the Union Government, in
its report to the Ministry of Women and Child Development has
recommended a ban on various practices that are purportedly Islamic
but require reform, including the practice of talaq-e-bidat and polygamy.
21. According to Hindustan Times Article dated 23.8.2014
titled “High-level panel seeks overhaul of family laws”, the report of the
high-level committee not only recommends a complete ban on triple-
talaq and polygamy as it renders Muslim women insecure and
vulnerable, but also recognizes that equality should be the basis of all
personal law, since the Constitution envisages equality, justice and dignity
for women. The Article also reports that it is the view of the high-level
committee that the Dissolution of Muslim Marriages Act, 1939 must be
amended to declare triple-talaq and polygamy void. Copy of Article dated
23.8.2014 is Annexure P-1.(Pages 38-39)

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22.It is submitted that Muslim Personal Law (Shariat) Application Act,
1937, by providing for the application of Muslim personal law in matters
relating to marriage where the parties are Muslims, conveys a wrong
impression that the law sanctions the sinful form of talaq and the
practice of Halala and Polygamy, which is grossly injurious to the basic
rights of married Muslim women and offends Articles 14, 15 and 21.
23.The assumptions and beliefs upon which talaq-e-bidat form of divorce is
recognized are factually false, scientifically untenable and contrary to
spirit/provision of the Constitution. This form of divorce has been
declared to be a spiritual offence in the Holy Quran and giving recognition
to that form interferes with the Muslim women‘s right to profess and
practice her religion, inasmuch as it unleashes a spiritual offence on her
to say the least and is, thus, violative of Articles 14, 15 and 21. It is,
accordingly, submitted that the Muslim Personal Law (Shariat)
Application Act, 1937, which is subject to the Constitution, is invalid,
insofar as it seeks to recognize and validate practices of Polygamy and
Nikah-Halala.
24. The Constitution neither grants any absolute protection
to personal law of any community that is arbitrary or unjust, nor
exempts personal laws from jurisdiction of the Legislature or Judiciary. To
the contrary, Entry 5 of List III in the Seventh Schedule confers power on
Legislature to amend and repeal existing laws or pass new laws in all such
matters, which were on August 15, 1947, governed by the personal laws.
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25.The freedom of conscience and free profession, practice and propagation
of religion guaranteed by Article 25 of the Constitution is not absolute
and, in terms of Article 25(1), “subject to public order, morality and
health and to the other provisions of this Part”. It is submitted that a
harmonious reading of Part III of the Constitution clarifies that the freedom
of conscience and free profession, practice and propagation of religion
guaranteed by Article 25 is subject to the fundamental rights guaranteed
by Articles 14, 15 and 21. In fact, Article 25 clearly recognizes this
interpretation by making the right guaranteed by it subject not only to
other provisions of Part III of the Constitution but also public order,
morality and health.
26. It is submitted that the Legislature has failed to ensure
the dignity and equality of women in general and Muslim women in
particular especially when it concerns matters of marriage, divorce and
succession. Despite the observations of this Hon‘ble Court for the past
few decades, Uniform Civil Code remains an elusive Constitutional goal
that the Courts have fairly refrained from enforcing through directions and
the Legislature has dispassionately ignored except by way of paying
some lip service.
27.Petitioner respectfully submits that the laws dealing with marriage and
succession are not part of religion and the law has to change with time,
and it finds support from the views expressed by this Hon‘ble Court in
John Vallamattom(supra) and Prakash v. Phulavati (supra).

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28.This Hon‘ble Court has held that discrimination against women under
Muslim personal laws, specifically the lack of safeguards against
arbitrary divorce and second marriage by husband during currency of
first marriage not withstanding the guarantees of the Constitution, needs
to be examined.
29.In Pakistan (Section 7, Muslim Family Laws), safeguards have been
introduced to protect dignity of women including requirement that
notice of talaq must be in writing, prescribing punishment for
contravention of such requirement of notice, prescribing a mandatory
period of separation and reconciliation for divorce to be effective,
prohibiting divorce during pregnancy of wife, introducing an arbitration
council for facilitating reconciliation process between husband and wife
who seek to divorce, and empowering women to remarry their husband
after divorce without the need for an intervening marriage with a third
person. Similarly, in terms of Section 6 of Muslim Family Laws, polygamy
has been severely restricted by prescribing that a married man may not
enter into another marriage without just reasons for the proposed
marriage, seeking the consent of existing wife or wives, and obtaining
the approval of an Arbitration Council established by the law, which
Arbitration Council must necessarily consult the existing wife or wives to
consider whether the proposed marriage is necessary and just. Violation
of this law has also been declared a punishable offence. It is submitted
that same law of divorce and polygamy is also followed by Bangladesh.

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30.Article 3 of the Universal Declaration of Human Rights provides that
everyone has the right to life, liberty and security of person while Article 7
provides that everyone is equal before the law and is entitled without any
discrimination to equal protection of the law. Since the adoption of the
Universal Declaration of Human Rights, universality and indivisibility of
human rights have been emphasized and it has been specifically
recognized that women‘s human rights are part of universal human rights.
In the year 2000, on the grounds that it violates the dignity of women, the
United Nations Human Rights Committee considered polygamy a
destruction of the internationally binding International Covenant on
Civil and Political Rights (to which India acceded on 10.04.1979) and
recommended that it be made illegal in all States. It is accordingly
submitted that it is well recognized in international law that polygamy
critically undermines the dignity and worth of women. On the same lines,
it is submitted that the practices of Talaq-e-Bidat, Nikah-Halala and
Polygamy critically undermine the dignity of Muslim women.
31. The United Nations Economic and Social Council‘s
Committee on Economic, Social and Cultural Rights explained in its
General Comment No. 16 of 2005 that the parties to the International
Covenant on Economic, Social and Cultural Rights are obliged to
eliminate not only direct discrimination, but also indirect discrimination,
by refraining from engaging in discriminatory practices, ensuring that
third parties do not

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discriminate in a forbidden manner directly or indirectly, and taking
positive action to guarantee women‘s equality. It is submitted that failure
to eliminate de jure (formal) and de facto (substantive) discrimination
constitutes a violation of the rights of women envisaged in such
international treaties and covenants. Therefore, it is submitted that not
only the Talaq-e-Bidat but also practices of polygamy, and nikah halala
should be declared illegal and unconstitutional. The actions of religious
groups, bodies and leaders that permit and propagate such practices must
also be declared unconstitutional.
32.The protection of Muslim women from Talaq-E-Bidat, Nikah-Halala and
Polygamy has profound consequences on quality of justice rendered in
the country as well as ensuring a life of dignity as guaranteed by Part III
the Constitution.
33.Various eminent Muslim scholars, judgments of eminent judges and also
Muslim citizens‘ groups have expressed disapproval of the notion that
the whimsical and capricious divorce by a husband is ―good in law
though bad in theology‖ as well as observed that such view is not only an
affront to the fundamental rights guaranteed by the Constitution, but
also based on the concept that women are chattel belonging to men,
which the Holy Quran does not brook.
34.A life of dignity and equality is undisputedly the most sacrosanct
fundamental right guaranteed by the Constitution and it prevails above
all other rights available under the laws of India. It is therefore submitted
that the solutions to societal

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problems of universal magnitude pertaining to horizons of basic human
rights, culture, dignity, decency of life, and dictates of necessity in the
pursuit of social justice should be decided on considerations other than
religion or religious faith or beliefs, or sectarian, racial or communal
constraints.
35.The Muslim Personal Law (Shariat) Application Act, 1937, by providing for
the application of Muslim personal law in matters relating to marriage
where the parties are Muslims, conveys a wrong impression that the law
sanctions the sinful form of Talaq, Nikah-Halala and Polygamy, which is
grossly injurious to the fundamental rights of married Muslim women
and offends Articles 14, 15, and 21 of the Constitution.
36.The Dissolution of Muslim Marriages Act, 1939 fails to secure for Indian
Muslim women the protection from bigamy, which protection has been
statutorily secured for Indian women belonging to all other religions,
and is to that extent violative of Articles 14, 15 and 21 of the
Constitution.
37.The assumptions and beliefs upon which polygamy is recognized are
false, scientifically untenable and contrary to the spirit and provisions of
the Constitution and, in any event, this has been declared a spiritual
offence in the Holy Quran.
38.Giving recognition to Talaq-E-Bidat, Nikah-Halala and Polygamy as a
valid form of divorce interferes with the Muslim women‘s right to profess
and practice her religion, inasmuch as it unleashes a spiritual offence on
her to say the least and is, thus, violative of Articles 14, 15 and 21 of the
Constitution.
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39.The Constitution neither grants any absolute protection to any personal
law that is unjust, nor exempts personal laws from the jurisdiction of the
Legislature or the Judiciary.
40.Entry 5 of List III in the Seventh Schedule confers power on the
Legislature to amend and repeal existing laws or pass new laws in all
such matters (including marriage and divorce) which were on August 15,
1947, governed by personal laws, and the Legislature has practically
abdicated its duties and permitted the basic fundamental rights of
Muslim women to be widely violated which also affects the entire
country as a matter of public order, morality and health.
41.The freedom of conscience and free profession, practice and propagation
of religion guaranteed by Article 25 of the Constitution is in terms of
Article 25, “subject to public order, morality and health and to the other
provisions of this Part”.
42.It is submitted that the Constitution does not preclude the State from
introducing social reforms and enacting laws on subjects traditionally
associated with religion, especially when such laws aim to secure public
order, morality, health and the rights guaranteed by Part III of the
Constitution.
43.The Constitution only protects religious faith and belief while the
religious practices under challenge run counter to public order,
morality, and health and must therefore yield to the basic human and
fundamental right of Muslim women to live with dignity, under equal
protection of laws, without any discrimination on the basis of gender or
religion.
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44.The Legislature has failed to ensure the basic dignity and equality of
women in general and Muslim in particular when it concerns matters of
marriage and divorce and succession.
45.A complete ban on Polygamy and Nikah-Halala has long been need of the
hour as it renders Muslim wives extremely insecure, vulnerable and
infringes their fundamental rights. Equality should be the basis of all
personal law since the Constitution envisages equality, justice and dignity
for women.
46.Several Islamic nations have banned/restricted practice of Polygamy and
Nikah –Halala while Indian Muslims are still being compelled to follow
such practice which neither has any basis in the Holy Quran nor is
associated with the practice of Islam. Thus, the fundamental rights of
Indian Muslims are being violated continuously, without any basis in
Islam or Holy Quran, despite reforms introduced by Islamic nations to
secure a life of dignity unmarred by gender discrimination.
47.Failure to eliminate de jure (formal), de facto (substantive) discrimination
against women including by non-State actors, either directly or
indirectly, violates not only the basic human rights of women but also
violates their civil, economic, social and cultural rights as envisaged in
international treaties and covenants. It is submitted that not only the
practices of Polygamy and Nikah-Halala be declared unconstitutional,
but the actions of religious groups, bodies and leaders that
permit/propagate such practices must also be declared illegal, and
violative of Articles 14, 15 and 21 of the Constitution.

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48.If the Preamble is key to understand the Constitution, the Directive
Principles are its basic ideals. The Constitution makers poured their
mind by setting forth humanitarian socialist principles, which epitomized
hopes and aspirations of people and declared the Directives as the
fundamental in the governance of the country. They are affirmative
instruction from the ultimate sovereign to the State authorities, to secure
to all citizens; Justice – social, economic, and political; Liberty of thought,
expression, belief, faith and worship; Equality of status and of
opportunity and to promote among them all fraternity, assuring dignity
of the individual and unity and integrity of the nation. Therefore, it is
duty of the State to direct their activities in such a manner so as to
secure the high ideals set forth in the Preamble and Part IV of the
Constitution. The Directives are an amalgam of diverse subjects
embracing the life of the nation and include principles, which are
statements of socio economic rights, social policy, administrative policy
and international policy.
49. The object of the Article 44 is to introduce a uniform civil
code for all the Indian citizens to promote fraternity, unity and national
integration. It proceeds on the assumption that there is no necessary
connection between religion and personal law in a civilized society.
While the Constitution guarantees freedom of conscience and of religion, it
seeks to divest religion from personal law and social relations and from
laws governing inheritance, succession and marriage, just as it has

21
been done even in Muslim Countries like Turkey and Egypt. The object
of Article 44 is not to encroach upon religious liberties. The Article 25
already reserves such right of the State. Dr. B.R. Ambedkar said in the
Constituent Assembly: “In fact, bulk of these different items of civil laws
have already been codified during the British Rule and the major items still
remaining for a Uniform Civil Code are marriage, divorce, inheritance and
succession (adoption, guardianship).”
50.It is to be noted that the several enactments, which have been made by
Parliament since Independence in the name of the Hindu Code relating to
marriage, succession, adoption and guardianship, relate only to Hindus
(including Budhists, Jains and Sikhs) and excludes the Muslims, who are
the major slice of the minority communities and who are more
vociferously objecting to frame uniform civil code for all citizens of India.
51.In ShahBano case, this Hon‘ble Court has observed thus: “It is a matter of
regret that Article 44 has remained dead letter. It provides that „the State
shall endeavour to secure for the citizens a uniform civil code throughout the
territory of India‟ but there is no evidence of any official activity for framing a
common civil code. A belief seems to have gained that it is for Muslim
community to take a lead in the matter of reforms of their personal law.
Common civil code will help the cause of national integration by removing
desperate loyalties to laws, which have conflicting ideologies. No community
is likely to bell the cat by making gratuitous concessions on this issue. It is for
the State,
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which is charged with the duty of securing a uniform civil code and it has
legislative competence to do so. A counsel in this case whispered that
legislative competence is one thing, the political courage to use that
competence is quite another. We understand difficulties involved in bringing
persons of different faiths and persuasion on a common platform but
beginning has to be made if the Constitution has any meaning. Role of the
reformer has to be assumed by the Courts because; it is beyond endurance of
sensitive minds to allow injustice when it is so palpable. Piecemeal
attempts to bridge the gap cannot take the place of Common Code. Justice to
all is for more satisfactory way of dispensing justice than justice from case
to case”.
52.The objection against uniform civil code that it would be a tyranny to
minority community was rejected by Sh. Munshi: “An argument has been
advanced that the enactment of a common civil code would be tyrannical to
minorities. Nowhere in advanced Muslim countries, personal law of each
minority has been recognized as so sacrosanct as to prevent the enactmentof a
common civil code. Take for instance Turkey or Egypt. No minority in
these countries is permitted to have such rights. When the Sharia Act was
passed, the Khojas and Cutchi Memons were highly dissatisfied. They then
followed certain Hindu customs for generations since they became converts
they had done so. They didnt want to confirm to Sharia and yet by
legislation of the Central Legislature where certain Muslim members who
felt that Sharia law should be enforced upon the

23
whole community carried their points. Khojas and Cutchie Memons
unwillingly had to submit to it. When you want to consolidate a
community, you have to consider the benefit, which may accrue, to the
whole community and not to the customs. It is not therefore; correct to say
that such an Act is tyranny of the majority. If you look at the Countries in
Europe, which have a common civil code, everyone who has gone there from
any part of the world and even minorities has to submit the common civil
code. The point is whether we are going to consolidate and unify our
personal law. We want to divorce religion from personal law, from what
may be called social relations or from the rights of parties as regards
inheritance of succession. What have these things got to do with religion. I
really fail to understand. There is no reason why there should be a common
civil code throughout the territory of India. Religion must be restricted to
spheres, which legitimately appertain to religion, and the rest of life must
be regulated, unified and modified in such a manner that we may evolve as
early as possible, a strong consolidated nation. Our first problem and the most
important problem is to produce National unity in this country. We think
we have got national unity but there are many factors and important
faction, which still offer serious dangers to our national consolidation. It is
very necessary that whole of our life so far as it is restricted to secular sphere
must be unified in such a way that we may be able to say- „We are not
merely a nation because we say so, but also in effect, by the

24
way we live, by our personal law, we are a strong and consolidated
nation.‟ From that point of view, I submit, the opposition is not, if I may say
so, very well advised. I hope our friends will not feel that, this is not an
attempt to exercise tyranny over a minority community; it is much more
tyrannous to the majority community”.
53.Sh. Alladi Krishnaswami Iyer said that a Civil Code ran into every
department of civil relation to the law of succession, to the law of marriage
and similar matters; there could no objection to the general statement
that „State shall endeavour to secure a Uniform CivilCode‟.
54.The Drafting Committee Chairman Dr. BR Ambedkar also spoke at some
length on the matter. He said: “We have in this country a uniform code of
laws covering almost every aspect of human relationship. We have a uniform
and complete criminal court………We have the law of transfer of property
which deals with property relation and which is operative throughout the
country…….. I can cite innumerable enactments, which would prove that the
country has practically a Civil Code, uniform in its contents and applicable to
the whole of the country.”
55.In John Vallamattom versus Union of India, [AIR 2003 SC 2902: (2003) 6
SCC 611], the then Hon‘ble Chief Justice of India Justice V. N. Khare, with
whom the other two Judges, Justice Sinha and Justice Lakshman agreed,
observed thus: “A common civil code will help the cause of national
integration by removing all contradictions based on ideologies”. The Court

25
also observed that “the power of the Parliament to reform and rationalize
the personal laws is unquestioned and the command of Article 44 of the
Constitution is yet to be realized”.
56. In Sarla Mudgal [AIR 1995 SC 1531: (1995) 3 SCC 635], while insisting the
need for a Common Civil Code, this Hon‘ble Court has held that the
fundamental rights relating to religion of members of any community
would not be affected thereby. It was held that personal law having been
permitted to operate under authority of legislation the same can be
superseded by a uniform civil code. Article 44 is based on the concept
that there is no necessary connection between religion and personal law
in a civilized Society. Article 25 guarantees religious freedom and Article
44 seeks to divest religion from social relation and personal law. Marriage,
succession and like matter of secular character cannot be brought under
Article 25, 26 and 27. Hon‘ble Judges requested the Prime Minister of India
to have a fresh look at Article 44 and endeavour to secure for the
citizens a uniform civil code throughout the territory of India and
wanted the Court to be informed about the steps taken. However, in Lily
Thomas case, the Court clarified the remarks made in Sarla Mudgal case
only as an opinion of the Judge and declared that no direction have been
issued for any legislation. At the same time, the Court did not express any
dissenting view of the need for a common civil code. It only held that to
have a legislation or not is a policy decision and Court cannot give any
direction to the Executive.

26
57.That diversity in personal matters along with religious differentiation
leads to sentimental tension between different communities as has been
learnt by bitter experience from the history leading to partition and
subsequent events till today. It can never be forgotten that the policy of
British imperialism was ‗divide and rule‘ and for that purpose, they would
at times fan anything, which might make the cleavage between Hindus and
Muslims, wider and wider. The British rulers, thus, lost no opportunity
in inserting even newer wages like the communal award, which planted
separate representation in the legislature according to religion; and
eventuality led to lamentable partition, which truncated the motherland
and involved so much of bloodshed and inhuman outrages. The
ideological concept, which led to partition was the assertion of the Muslims
that they constitute a ‗Nation‘ separate from the Hindus. Even though
Hindu leader didn‘t admit two-nation theory, the partition is an
accomplished fact and cannot be wiped off. The framers of the
Constitution had in their mind the fresh experience of atrocities, which
were committed at the time of partition. When the Muslims were given the
options to go away to new dominion, it was quite natural for the leaders
of divided India to aspire for the unity of the one nation, namely, Indian,
so that history might not repeated itself.
58. By the 42nd amendment; expression ‗Unity of Nation‘ was
replaced by the ‗Unity and Integrity of the Nation‘ and Article 51A was
introduced as the fundamental duty, which is thus:

27
(a) to abide by the Constitution and respect its ideals and institutions; (b)
to cherish and follow the noble ideals which inspired our national struggle
for freedom; (c) to uphold and protect the Unity and integrity of India; (e) to
promote harmony and the spirit of common brotherhood amongst all the
people of India, transcending religious, linguistic and regional or sectional
diversities, to renounce parties derogatory of dignity of women.
59.The Constitution makers wanted to establish a ‗Secular State‘ and with
that purpose they codified the Article 25(1) which guaranteed freedom
of religion, freedom of conscience and freedom to profess, practice and
propagate religion, to all persons. But at the same time they sought to
distinguish between the essence of a religion and other secular activities,
which might be associated with religious practice but yet did not form a
part of the core of the religion, and with this end in view they inserted
Clause 2(a) as thus: “Nothing in this Article shall affect the operation of any
existing law or prevent the State from making any law regulating or
restricting any economic, financial, political or other secular activities,
which may be associated with religiouspractices.”
60. Anybody who raises an objection to implementation of
the Article 44 becomes guilty of violation of the Preamble, Article 44 as
well as Article 51A of the Constitution and any Government, which
yields to such demands, even after 68 years of the adoption of the
Constitution, would be not only liable to the charge of throwing the
Constitution to the winds

28
but also of being a party to the violation of Article 44 and Article 51A
specifically, and also of guarantee of non- discrimination on the ground
of religion, race, caste, sex and place of birth under Article 15 of the
Constitution.
61.Clause (e) of the Article 51A enjoins every citizen to renounce practices
derogatory to the dignity of woman. It needs little arguments to point
out that a man marrying up to four wives or divorcing his wife by the
utterance of word ‗Talaq‘ thrice; or refusal to maintain a divorced wife
after a limited period of time (three months); are all practices
derogatory to the dignity a woman. Therefore, any member of the
Muslim community, who resorts to such practices, who himself or urges
that such practices should be immuned from legislation or that Article 44
itself must be wiped off or restricted to persons other than Muslims, is
violating Article 51A. Whether that provision is unenforceable in the
Courts of law are not is a different question; but in other countries such
a person would have lost his citizenship if not something more.
62. It is the most radical argument that Article 44 should not
be implemented because it is opposed to Sharia. It is pertinent to quote
former CJI Justice Chagla‘s article ‗Plea for Uniform Civil Code‘ - “Article
44 is a mandatory provision binding the Government and it is incumbent
upon it is to give effect to this provision… The Constitution was enacted for the
whole country, it is binding for the whole country, and every section and
community must accept its provisions and its Directives”.

29
63.As far as the plea of Muslim identity is concerned, it is nothing but a relic
of the two-nation theory, which was asserted by the Muslim leaders to
carve out a separate State on the basis of religion. On the other hand, the
nationalist Indian leaders all along urged that there was only one Nation,
viz. India; and after the Muslims went away on the partition, there was
nothing to stand in the way of proclaiming in the Preamble that the goal
of India was One Nation united by the bond of fraternity. There should
not be any fear of losing identity when the Constitution guarantees
religion, language, culture, in Articles 26, 29, 30 of the Constitution. After
the partition, the Muslims who preferred to remain in divided India
knew very well what they could get from the secular government. To cry
for more, is nothing but a resurrection of slogan „Islam in Danger‟ which led
to the partition of India.
64. It is next contended that even though a common civil
code is desirable, it could not be brought about until the Muslim
themselves came forward to adopt it. It is only a diluted form of plea for
abolition of Article 44 of the Constitution altogether, because the Article
44 may virtually be effaced if the Muslims never come forward with
their consent. None of Directives lay down that they can be
implemented only if there is 100% consents of the citizens. Constitution
was adopted after due deliberation as to its provisions being beneficial
to the people of India, by a Constituent Assembly having enough Muslim
representatives.
30
65.Illiterate/ignorant parents don‘t desire that their children should go to
school instead of helping them in agriculture, or earning money in
factories. Should the implementation of Article 45 wait until these
people give their consent? The controversy arising from the Shah Bano
case clearly exposed that it is only a section of the Muslim community,
who would not accept it. Is there any precedent in any country, where the
caprices of such a fraction of the population having allowed to stand in the
way of the unity and progress of the entire nation and the implementation
of the fundamental law of the country, adopted by a solemn Constituent
Assembly? Article 44 is addressed to State thus it is duty of the State to
implement it in letter and spirit in consonance with Article 14, 15 and 21.
66. This Hon‘ble Court has obserevd: “A belief seems to have
gained ground that it is for the Muslims community to take a lead in the
matter of reforms of their personnel law…….But it is the State which is
charged the duty of securing a uniform civil code for the citizens of the
country. This duty has been imposed on the State with the object of achieving
national integration by removing disparate loyalties to laws which have
conflicting ideologies.” The question arises – why then has the Union
Government failed to discharge this Constitutional mandate for more
than six decades? The Answer has been pithily answered by the Court -
lack of political courage – which many other responsible persons have
amplified as the fear of losing Muslim votes at the next election.

31
67.The State has not only failed to implement the Article 44 but also violated
the norm of the much-vaunted secularism. It is also curious that the
Government has not yet protested against the decision of the Indian
Muslim Personal Law Board to setup parallel Courts in many localities to
decide the cases under Shariat, even though the setting up of such a
parallel Court will not only sound a death knell to the Article 44 but also
to the provisions in the Constitution providing for one system of
judiciary for the entire nation and all its people. It is a retrograde step
cutting at the roots of the Constitution.
68. It is also urged that the Shariat is immutable being
founded on the Koran which is ordained by the God. Apart from the
historical fact that this issue has been concluded by the partition of India
and adoption of the Constitution of India, it has been belied by the
multifarious changes by way of reform in all the Muslim State e.g. Egypt,
Jordan, Morocco, Pakistan, Syria, Tunisia, Turkey – where no question of
Hindu dominance never arose. It is pertinent to State the Report of the
Commission on Marriage and Family Laws, which was appointed by the
Government of Pakistan in 1955, and which should have demolished,
once for all, the plea that the Shariat is immutable. In words of Allama
Iqbal, “The question which is likely to confront Muslim Countries in the near
future, is whether the Law of Islam is capable of evolution – a question
which will require great intellectual effort, and is sure to be answered in
the affirmative.”
32
69.One more logic is given that even if a common civil code
is formulated, it should be optional for the Muslims to adopt its
provisions. Petitioner states that it is only a diluted version of the
forgoing pleas, viz. that the Shariat is immutable; that no Code can be
imposed on Muslims without their consent. It is unmeaning to draw-up a
uniform civil code as enjoined by Article 44 if it is not binding on every
citizen of India.
70.Polygamy is totally prohibited in Tunisia and Turkey. In countries like
Indonesia, Iraq, Somalia, Syria, Pakistan and Bangladesh, it is
permissible only if authorized by the prescribed authority. Unilateral
Talaq has been abolished in Egypt, Jordan, Sudan, Indonesia, Tunisia,
Syria and Iraq etc. In Pakistan and Bangladesh, any form of extra judicial
Talaq shall not be valid unless confirmed by an arbitration council but in
India, it is continuing. The Dissolution of Muslim Marriage Act 1939
provided Muslim women to obtain dissolution in certain cases, which
they do not have under the Shariat. Under the Act, marriage with another
woman would be treated as an act of ‗cruelty‘ to bar a husband‘s suit for
restitution of conjugal rights. The Act has been adopted in Pakistan and
Bangladesh with amendments. The statement of objects and reasons of
the Act, which has been conceded by Muslims in India, Pakistan and
Bangladesh is illuminating: “There is no provision in the Hanafi Code of
Muslim Law enabling a married Muslim women to obtain a decree from the
Court dissolving her marriage in case a husband neglects to

33
maintain her, makes her life miserable by deserting or persistently
maltreating her or absconds leaving her un- provided for and under other
circumstances. The absence of such a provision has entailed unspeakable
misery to innumerable Muslim women in British India.”
71.History of triple-talaq (Talaq-Ul-Biddat) is intriguing. (a) It has no sanction
in the Koran and the Shiahs don‟t recognize its validity. Under Shiah Law,
divorce by the husband may be valid only if the husband pronounces an
Arabic formula in the presence of two witnesses. (b) Even though contrary
to the Shariat, Hanafis (that is Sunnis) follow this form of Talaq as an
„irregular‟ form, founded on practice introduced by the Ommayede
monarchs in the second century of the Mohammedan era. During the British
regime, many High Courts condemned it as contrary to Shariat and upheld its
validity on thegroundofpractice. ThisHon‟ble Courthasdeclareditvoid.
72.Under the Constitution, controversy continued and various Muslim
scholars expressed their opinion against triple-talaq. The Government,
however, remained inactive in order to appease the sentiments of one
section of the Muslim population, viz., the Sunnis. On 21.05.1993, the
Jamiat Ahle Hadith, the highest authority of Shariat has come out with the
conclusion that Talaqul-Ul-Biddat is contrary to Shariat. If Government
is serious to bring about a common civil code, it should now come
forward on support of the aforesaid authoritative pronouncement
instead of being beguiled by

34
statements issued by few fundamentalists led by All India Muslim
Personal Law Board, which is a NGO, registered under the Society
registration Act 1860.
73.Shariat is controlled by legislation in Pakistan and Bangladesh. In India,
a uniform law of maintenance was adopted by Section 488 of the CrPC.
When Section 125 of the CrPC extended to divorced women, Muslims
contended that it should not be applied to them as it was contrary to
Shariat but this Hon‘ble Court turned down this contention. This
Hon‘ble Court also rejected the argument that according to Muslim
Personal Law, husband‘s liability to provide for the maintenance of his
divorced wife is limited to period of iddat. It was held that Section 125 of
CrPC overrides the personal law.
74. To overcome this decision, Parliament enacted Muslim
(Protection of Rights of Divorce) Act 1986. In spite of legislation, this
Hon‘ble Court has held that 1986 Act actually codifies what has been
stated in Shah Bano‘s Case. It was held that as regards to divorced Muslim
women‘s right, the starting point should be Shah Bano‘s Case, and not the
original texts or any other material – all the more so when varying
versions as to the authenticity of the source or shown to exist. It was
held that the law declared in Shah Bano‘s Case, was after considering
„Holy Quran‟ and other Commentaries and texts. It was observed that the
rationale behind Section 125 of CrPC is to avoid vagrancy or destitution
on the part of a Muslim women. Articles 14, 15, 21 were also taken into
consideration.
35
75.This Hon‘ble Court interpreted that under Section 3 of
the Muslim Women (Protection of Rights & Divorce) Act, 1986, a Muslim
husband is liable to make provision for the future of a divorced wife even
afte iddat period. [Sabra Shamim versus Maqsood Ansari, (2004) 9 SCC
606] Justice Khalid of Kerala High Court (as his Lordship then was)
reminded the plight of Muslim women and wanted the law to be amended
to alleviate their sufferings and above decisions were approved by this
Hon‘ble Court in Shamim Ara v State of UP [(2002) 7 SCC 518].
76. In regard to tribal women, the Court recognized the laws
as patriarchal and declined to give general direction regarding customs
and other inheritance laws which discriminated women. The Court
protected rights of women by suspending the exclusive rights of male
succession until the women chose other means of livelihood. This
enactment cannot, therefore, be cited in support of the contention that
Muslim Personal Law is immutable and cannot be subjected to
legislation.
77. It is pertinent no quote Mr. Nasiruddin‘s speech in the
Constituent Assembly: ―certain aspects of the Civil Procedure Code have
interfered with our Personal Law and very rightly so and also that marriage
and inheritance are similar practices associated with religion”. [Constituent
Assembly Vol-VII, P542]
78.Petitioner filed impleadment application [IA-19/2016] in Triple Talaq
Matter [SMW(C) 2/2015] and also submitted a Representation to the
Government. Copy of the Representation dated 17.5.2017 is annexed as
Annexure P-2. (Page 40-58)

36
79.On 1.7.2016, the Central Government asked the Law Commission of
India to examine issue of Common Civil Code.
80.On 7.10.2016, Law Commission sought public opinion on the exercise of
revising and reforming family laws in the context of Article 44 of the
Constitution. The Commission appealed to members of religious,
minority and social groups, NGOs, political parties and government
agencies, to present their views through a questionnaire on a range of
issues, including the practice of triple talaq and right to property for
woman. The relevant part of the Commission appeal is thus: “……..The
objective behind this endeavour is to address discrimination against
vulnerable groups and harmonize the various cultural practices. The
Commission invites suggestions on all possible models and templates of a
common civil code…....The Commission hopes to begin a healthy conversation
about the viability of a UCC and will focus on family laws of all religions and
the diversity of customary practices, to address social injustice rather than
plurality of law…The Commission will consider the opinions of all
stakeholders and general public for ensuring that the norms of no one class,
group of community dominate the tone or tenor of the family law reforms
The
responses can be sent within 45 days to the Law Commission..”
81.Copy of the Law Commission‘s Appeal and Questionnaire dated 7.10.2016
is annexed as Annexure P-3. (Page )
82.Copy of the Judgment on Triple Talaq in SMW(C) 2/2015 dated 22.8.2017
is annexed as Annexure P-4. (Page )

37
83.In its questionnaire, the Law Commission has sought public opinion on
issues like - whether the UCC should include all of some of the subjects,
including marriage, divorce, adoption, guardianship and child custody,
maintenance, successions and inheritance; whether the existing
personal laws and customary practices need codification; whether
codification can ensure gender equality; and whether the UCC should be
optional.
84.Questionnaire includes the views on issues pertaining to the denial of
maintenance or insufficient maintenance, compulsory registration of
marriages, protection of couples who enter into inter-religion and inter-
caste marriages, and the legal validity of the Uniform Civil Code vis-a-vis
the individual right to freedom of religion.
85.Responses on whether polygamy, polyandry and other customary
practices like „maitri-karaar‟ (friendship deed) should be banned or
regulated, and whether the practice of triple talaq should be abolished
in toto, retained, or retained with suitable amendments, have also been
invited.
86.Besides the above question, the Law Commission has asked if steps need
to be taken to ensure that Hindu women are better able to exercise their
right to property, which is often bequeathed to sons under customary
practices; whether the two-year waiting period for finalizing divorce
violates Christian women‘s right to equality; and whether all religious
denominations should have common grounds for divorce.

38
GROUNDS
A. Because Section 2 of the Muslim Personal Law Application Act, 1937, is
unconstitutional and violative of Articles 14, 15 and 21 of the
Constitution and also injurious to public order, morality and health,
insofar as it seeks to recognize and validate the practice of Polygamy and
Nikah-Halala.
B. Because on 22.8.2017, this Hon‘ble Court in SMW(C) 2/2015 has held
that Section 2 of the Muslim Personal Law (Shariat) Application Act,1937,
is arbitrary and violative of Articles 14, 15 and 21 of the Constitution,
insofar as it seeks to recognize practice of Triple Talaq or Talaq-Ul-
Biddat.
C. Because the Executive has not declared that provisions of the Indian
Penal Code,1860, are applicable on all Indian Citizens and practice of
Triple Talaq is a cruelty under Section 498A of the IPC, Nikah-Halala is
Rape under Section 375 of the IPC and Polygamy is an offence under
Section 494 of the IPC.
D. Because the Laws dealing with marriage and succession are not a part of
religion, and, law has to change with time and international covenants /
treaties. Hence, this Hon‘ble Court may examine validity and
reasonableness of personal laws.
E. Because while deciding the Civil Appeal - 7217/2013 [Prakash & others v.
Phulavati & others], this Hon‘ble Court ordered registration of a PIL
[Suo Motu Writ (Civil) 2 of 2015] to consider gender discrimination
suffered by Muslim women owing to “arbitrary divorce and second
marriage of their husbands during the currency of their first marriage”.

39
F. Because the Constitution has primacy over Common Law and Common
Law has primacy over the Personal Law. Thus, India doesn‘t need another
personal law on Talaq-Halala-Polygamy.
G. Because on 07.10.2016, the Law Commission of India sought public
opinion within 45 days on the exercise of revising and reforming family
laws in the context of Article 44 of the Constitution of India. However,
neither it has submitted its report to the Government not published it
on its official website till date even after 16 months have been past.
H. Because Nikah-Halala and Polygamy is unconstitutional and violative of
Articles 14, 15 and 21 of the Constitution and this Hon‘ble Court said that
both issues would be taken up after hearing the Triple Talaq issue.
However, surprisingly, petition was disposed of without hearing Polygamy
and Nikah-Halala.
I. Because Polygamy and Nikah-Halala is injurious to right to life and liberty
guaranteed under Article 21 of the Constitution and public order,
morality and health and can be superseded by State just it prohibited
human sacrifice and practice of sati.
J. Because Government has not taken apt steps against the decision of
Muslim Personal Law Board to setup parallel Courts in many
districts to decide cases under Shariat, even though the setting up
of such a parallel Court will not only sound a death knell to the
Article 44 but also to the provisions in the Constitution providing for
one system of judiciary for the entire nation and all its people. It is a
retrograde step cutting at the roots of the Constitution.

40
PRAYER
Keeping in view the above stated facts and circumstances and appalling
effects of Polygamy and Nikah-Halala on basic rights guaranteed under
Articles 14, 15 and 21 of the Constitution, it is prayed that this Hon‘ble
Court may be pleased to issue a writ, order or direction or a writ in the
nature of mandamus to:
a) declare Section 2 of Muslim Personal Law (Shariat) Application Act, 1937,
unconstitutional and violative of Articles 14, 15 and
21 of the Constitution, insofar as it seeks to recognize and validate
practice of Polygamy andNikah-Halala;
b) direct the Central Government to take appropriate action against the
person, institution and organizations, running Sharia Courts to
decide the cases related to Marriage, Divorce, Inheritance and
Succession or other similar matters;
c) declare that provisions of the IPC are applicable on all Indian Citizens and
Triple-Talaq is a cruelty under Section 498A of the IPC, Nikah-Halala is
Rape under Section 375 of the IPC, and Polygamy is an offence under
Section 494 of the IPC;
d) direct the Law Commission of India to consider the Civil Laws of
developed countries, particularly the Civil Law of France, Japan and
China and publish its Report in spirit of Article 44 of the Constitution
within three months; (Annexure P-3)
e) take such other steps as this Hon‘ble Court may deem fit and proper in
this matter and allow the cost to petitioner.
DRAWN ON:02.3.2018 (R.D.UPADHYAY)
FILED ON:05.3.2018 ADVOCATE FOR PETITIONER

41
APPENDIX
THE MUSLIM PERSONAL LAW (SHARIAT) APPLICATION ACT,1937
Section 2 in the Muslim Personal Law (Shariat) Application Act,1937

2. Application of Personal law to Muslims.—Notwithstanding any custom or usage to
the contrary, in all questions (save questions relating to agricultural land) regarding
intestate succession, special property of females, including personal property
inherited or obtained under contract or gift or any other provision of Personal Law,
marriage, dissolution of marriage, including talaq, ila, zihar, lian, khula and
mubaraat, maintenance, dower, guardianship, gifts, trusts and trust properties, and
wakfs (other than charities and charitable institutions and charitable and religious
endowments) the rule of decision in cases where the parties are Muslims shall be the
Muslim Personal Law.
THE CONSTITUTION OF INDIA
Article 14 in the Constitution of India, 1949

14. Equality before law The State shall not deny to any person equality before the
law or the equal protection of the laws within the territory of India Prohibition of
discrimination on grounds of religion, race, caste, sex or place of birth

15. Prohibition of discrimination on grounds of religion, race, caste, sex or place of
birth
(1) The State shall not discriminate against any citizen on grounds only of religion,
race, caste, sex, place of birth or any of them
(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of
them, be subject to any disability, liability, restriction or condition with regard to
(a) access to shops, public restaurants, hotels and palaces of public entertainment;
or
(b) the use of wells, tanks, bathing ghats, roads and places of public resort
maintained wholly or partly out of State funds or dedicated to the use of the general
public
(3) Nothing in this article shall prevent the State from making any special provision for
women and children
(4) Nothing in this article or in clause (2) of Article 29 shall prevent the State from
making any special provision for the advancement of any socially and educationally
backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes

21. Protection of life and personal liberty. No person shall be deprived of his life or
personal liberty except according to procedure established by law

44. Uniform civil code for the citizens. The State shall endeavour to secure for the
citizens a uniform civil code throughout territory of India.
42
********************
Hindustan Times
HIGH-LEVEL PANEL SEEKS OVERHAUL OF FAMILY LAWS
August 23, 2014, Moushumi Das Gupta
A high-level committee set up by the previous UPA government has sought an
overhaul of family laws by recommending a ban on the practice of ―oral, unilateral
and triple talaq (divorce)‖ and polygamy, and
―mandatory payment of maintenance to wife and children‖ in the event of separation or
divorce.
The report — titled ‗Women and the law: An assessment of family laws with
focus on laws relating to marriage, divorce, custody, inheritance and succession‘ —
was submitted to women and child development minister Maneka Gandhi recently.
The view taken by it is close to the current BJP regime‘s position on a uniform civil
code.
Ministry officials refused to comment, saying they were still going through the
report.
The committee, headed by former Panjab University professor Dr Pam Rajput,
examined the rights of women under the broad framework of Hindu, Muslim,
Christian and Parsi law. Supporting uniformity in the minimum age for marriage for
boys and girls (18 years), it recommended the passing of a ―central enactment‖ for
registration of marriages that is
―applicable to all religious groups‖.
Another recommendation of uniformity dealt with a clause in the Hindu
Marriage Act (HMA), 1955 on irretrievable breakdown of marriage. This should not be
made grounds for divorce until financial safeguards are in place, it said.
A bill (now lapsed) introduced in Parliament last year sought to cover this
clause only in the HMA, 1955 and Special Marriage Act, 1954. But the report said, ―If
and when this amendment is introduced, irretrievable breakdown of marriage as
grounds for divorce should also be introduced under the Divorce Act, 1869, Parsi
Marriage and Divorce Act, 1936 and Dissolution of Muslim Marriage Act, 1939 as
well. It should be a general matrimonial relief available to all.‖
On Christian laws on divorce, it recommended amending the prescribed two-
year period in mutual consent cases under the Divorce Act to one year, in order to
ensure consistency in all related laws.
However, lawyer Kirti Singh, part of a core panel on legal issues set up by the
committee, told HT, ―We are not recommending uniform civil code or abolition of
personal laws. But equality should be the basis of all
43
personal law... We are also recommending that some laws like Right to Marital
Property be framed for all women.‖
―Women are discriminated against in family laws. The report highlights this
and what needs to be done to make them equal. After all, article 14 of our Constitution
envisages equality, justice and dignity for women,‖ said Rajput.
On Muslim law, the committee called for a ―complete ban on oral, unilateral
and triple divorce as it renders wives extremely insecure regarding their marital
status…. The Dissolution of Muslim Marriages Act, 1939 should be amended and
specific provisions introduced, making triple talaq and polygamy void. A provision
should be added providing interim maintenance.‖
It also called for a minimum ―meher‖ (mandatory payment to a bride before
marriage by the groom‘s family) that should not be less than the groom‘s annual
income.
Though the Supreme Court has held triple talaq to be illegal, it is still common
practice.
On inheritance and succession laws in the community, the report said, ―A
woman, Shia or Sunni, gets half the share of a man... There is a need to address such
discriminatory practice.‖
It went on to recommend that section 125 of the CrPC be amended to include
maintenance for women in live-in relationships and for unmarried dependent
daughters.
Suggesting changes to the Special Marriage Act, 1954, the committee said,
―Notices (of intended marriages) should not be displayed on notice boards outside the
registrar‘s office as it places young people, desirous of contracting a marriage of
choice, at great risk.‖
Objecting to the 30-day notice period for couples wishing to get married
under this law, it recommended bringing it down to seven days.
―This provision serves no purpose except to delay the process and a couple wanting
to marry in a hurry because of parental or other disapproval cannot afford to wait a
full month.‖
The act is a secular alternative to personal law for many couples who face
difficulties in getting married, mostly due to matters of religion and caste.
*******************
44
To, 17.05.2016
The Hon’ble Prime Minister,
Government of India, New Delhi,
Through: The Principle Secretary - Prime Minister Office
Subject: Uniform Civil Code in spirit of the Article 44
Respected Sir,
1. If the Preamble is key to understand the Constitution, the Directive
Principles are its basic ideals. The Constitution makers poured their
mind by setting forth humanitarian socialist principles, which
epitomized the hopes and aspirations of people and declared the
Directives as the fundamental in the governance of the country.
They are affirmative instruction from the ultimate sovereign to the
State authorities, to secure to all citizens; Justice – social, economic,
and political; Liberty of thought, expression, belief, faith and
worship; Equality of status and of opportunity and to promote
among them all fraternity, assuring dignity of the individual and
unity and integrity of the nation. It is duty of the State to direct their
activities in such a manner so as to secure the high ideals set forth in
the Preamble and Part IV of the Constitution. The Directives are an
amalgam of diverse subjects embracing the life of the nation and
include principles, which are

45
statements of socio economic rights, social policy, administrative
policy and international policy.
2. The object of the Article 44 is to introduce a uniform civil code for all
the Indian citizens to promote fraternity, unity and national
integration. It proceeds on the assumption that there is no necessary
connection between religion and personal law in a civilized society.
While the Constitution guarantees freedom of conscience and of
religion, it seeks to divest religion from personal law and social
relations and from laws governing inheritance, succession and
marriage, just as it has been done even in Muslim Countries like
Turkey and Egypt. The object of Article 44 is not to encroach upon
religious liberties. The Article 25 already reserves such right of the
State. Dr. BR Ambedkar said in the Constituent Assembly: ―In fact,
bulk of these different items of civil laws have already been codified
during the British Rule and the major items still remaining for a
Uniform Civil Code are marriage, divorce, inheritance and succession
(adoption, guardianship).‖ It is to be noted that the several
enactments, which have been made by Parliament since
Independence in the name of the Hindu Code relating to marriage,
succession, adoption and guardianship, relate only to Hindus
(including Budhists, Jains and Sikhs) and excludes the Muslims,
who are the major slice of the minority communities and

46
who are more vociferously objecting to the framing of a uniform
civil code for all the citizens of India.
3. In Shah Bano case, the Apex Court held: ―It is a matter of regret that
Article 44 has remained dead letter. It provides that ‗the State shall
endeavour to secure for the citizens a uniform civil code throughout
the territory of India‘ but there is no evidence of any official activity
for framing a common civil code. A belief seems to have gained that it
is for Muslim community to take a lead in the matter of reforms of
their personal law. Common civil code will help the cause of national
integration by removing desperate loyalties to laws, which have
conflicting ideologies. No community is likely to bell the cat by
making gratuitous concessions on this issue. It is for the State,
which is charged with the duty of securing a uniform civil code and it
has legislative competence to do so. A counsel in this case
whispered that legislative competence is one thing, the political
courage to use that competence is quite another. We understand
difficulties involved in bringing persons of different faiths and
persuasion on a common platform but beginning has to be made if
the Constitution has any meaning. Role of the reformer has to be
assumed by the Courts because; it is beyond endurance of sensitive
minds to allow injustice when it is so palpable. Piecemeal attempts
to bridge the gap cannot take the place of

47
Common Civil Code. Justice to all is for more satisfactory way of
dispensing justice than justice from case to case‖.
4. One of the main objection against uniform civil code that it would be
a tyranny to minority community was rejected by Sh. K.M. Munshi in
the Constituent Assembly as thus:
―An argument has been advanced that the enactment of a common
civil code would be tyrannical to minorities. Nowhere in advanced
Muslim countries, personal law of each minority has been
recognized as so sacrosanct as to prevent the enactment of a
common civil code. Take for instance Turkey or Egypt. No minority
in these countries is permitted to have such rights. When the Sharia
Act was passed, the Khojas and Cutchi Memons were highly
dissatisfied. They then followed certain Hindu customs for
generations since they became converts they had done so. They didnt
want to confirm to Sharia and yet by legislation of the Central
Legislature where certain Muslim members who felt that Sharia law
should be enforced upon the whole community carried their points.
Khojas and Cutchie Memons unwillingly had to submit to it. When you
want to consolidate a community, you have to consider the benefit,
which may accrue, to the whole community and not to the customs.
It is not therefore; correct to say that such an Act is tyranny of the
majority. If you look at the Countries in Europe, which have a
common civil code,

48
everyone who has gone there from any part of the world and even
minorities has to submit the common civil code. The point is whether
we are going to consolidate and unify our personal law. We want to
divorce religion from personal law, from what may be called social
relations or from the rights of parties as regards inheritance of
succession. What have these things got to do with religion. I really fail
to understand. There is no reason why there should be a common
civil code throughout the territory of India. Religion must be
restricted to spheres, which legitimately appertain to religion, and
the rest of life must be regulated, unified and modified in such a
manner that we may evolve as early as possible, a strong
consolidated nation. Our first problem and the most important
problem is to produce National unity in this country. We think we
have got national unity but there are many factors and important
faction, which still offer serious dangers to our national
consolidation. It is very necessary that whole of our life so far as it is
restricted to secular sphere must be unified in such a way that we
may be able to say- ‗We are not merely a nation because we say so,
but also in effect, by the way we live, by our personal law, we are a
strong and consolidated nation.‘ From that point of view, I submit,
the opposition is not, if I may say so, very well advised. I hope our
friends will not feel that, this is not an

49
attempt to exercise tyranny over a minority community; it is much
more tyrannous to the majority community‖.
5. Sh. Alladi Krishnaswami Iyer said that a Civil Code ran into every
department of civil relation to the law of succession, to the law of
marriage and similar matters; there could no objection to the
general statement that State shall endeavour to secure a Uniform
Civil Code.
6. The Drafting Committee Chairman Dr. Ambedkar also spoke at
some length on the matter. He said: ―We have in this country a
uniform code of laws covering almost every aspect of human
relationship. We have a uniform and complete criminal
court………We have the law of transfer of property which deals with
property relation and which is operative throughout the
country…….. I can cite innumerable enactments, which would prove
that the country has practically a Civil Code, uniform in its contents
and applicable to the whole of the country.‖
7. In John Vallamattom versus Union of India, AIR 2003 SC
2902: (2003) 6 SCC 611, the then Hon‘ble Chief Justice of India
Justice V. N. Khare, with whom the other two Judges, Justice Sinha
and Justice Lakshman agreed, observed as thus: ―A common civil
code will help the cause of national integration by removing all
contradictions based on ideologies‖. The Court also observed that
―the power of the Parliament to reform and rationalize the

50
personal laws is unquestioned and the command of Article 44 of the
Constitution is yet to be realized‖.
8. In Sarla Mudgal Vs. Union of India, AIR 1995 SC 1531: (1995) 3 SCC
635, while insisting the need for a Common Civil Code, the Apex
Court held that the fundamental rights relating to religion of
members of any community would not be affected thereby. It was
held that personal law having been permitted to operate under
authority of legislation the same can be superseded by a uniform
civil code. Article 44 is based on the concept that there is no
necessary connection between religion and personal law in a civilized
Society. Article 25 guarantees religious freedom and Article 44 seeks
to divest religion from social relation and personal law. Marriage,
succession and like matter of secular character cannot be brought
under Article 25, 26 and 27. Hon‘ble Judges requested the Prime
Minister of India to have a fresh look at Article 44 and endeavour to
secure for the citizens a uniform civil code throughout the territory of
India and wanted the Court to be informed about the steps taken.
However, in Lily Thomas Vs. Union of India, the Court clarified the
remarks made in Sarla Mudgal case only as an opinion of the Judge
and declared that no direction have been issued for any legislation.
At the same time, the Court did not express any dissenting view of
the need for a common civil code. It only held that

51
to have a legislation or not is a policy decision and Court cannot
give any direction to theExecutive.
9. That diversity in personal matters along with religious
differentiation leads to sentimental tension between different
communities as has been learnt by bitter experience from the
history leading to the partition and by subsequent events till today. It
can never be forgotten that the policy of British imperialism was
‗divide and rule‘ and for that purpose, they would at times fan
anything, which might make the cleavage between Hindus and
Muslims, wider and wider. The British rulers, thus, lost no
opportunity in inserting even newer wages like the communal
award, which planted separate representation in the legislature
according to religion; and eventuality led to lamentable partition,
which truncated the motherland and involved so much of
bloodshed and inhuman outrages. The ideological concept, which
led to partition was the assertion of the Muslims that they
constitute a
‗Nation‘ separate from the Hindus. Even though Hindu
leader didn‘t admit two-nation theory, the partition is an
accomplished fact and cannot be wiped off. The framers of the
Constitution had in their mind the fresh experience of atrocities,
which were committed at the time of partition. When the Muslims
were given the options to go away to the new dominion, it was
quite natural for the leaders of

52
divided India to aspire for the unity of the one nation, namely,
Indian, so that history might not repeated itself.
10. By the 42nd amendment; expression ‗Unity of Nation‘ was
replaced by the ‗Unity and Integrity of the Nation‘ and Article 51A was
introduced as the fundamental duty as thus: (a) to abide by the
Constitution and respect its ideals and institutions; (b) to cherish and
follow the noble ideals which inspired our national struggle for
freedom; (c) to uphold and protect the Unity and integrity of India;
(e) to promote harmony and the spirit of common brotherhood
amongst all the people of India, transcending religious, linguistic
and regional or sectional diversities, to renounce parties derogatory
of dignity of women.
11. The Constitution makers wanted to establish a
‗Secular State‘ and with that purpose they codified the Article
25(1) which guaranteed freedom of religion, freedom of conscience
and freedom to profess, practice and propagate religion, to all
persons. But at the same time they sought to distinguish between
the essence of a religion and other secular activities, which might be
associated with religious practice but yet did not form a part of the
core of the religion, and with this end in view they inserted Clause
2(a) as thus: ―Nothing in this Article shall affect the operation of any
existing law or prevent the State from making any law regulating or
restricting any
53
economic, financial, political or other secular activities, which may
be associated with religious practices.‖
12. Anybody who raises an objection to implementation of the
Article 44 becomes guilty of violation of the Preamble, Article 44 as
well as Article 51A of the Constitution and any Government, which
yields to such demands, even after 66 years of the adoption of the
Constitution, would be not only liable to the charge of throwing the
Constitution to the winds but also of being a party to the violation of
Article 44 and Article 51A specifically, and also of guarantee of non-
discrimination on the ground of religion of Article 15 of the
Constitution.
13. Clause (e) of the Article 51A enjoins every citizen to
renounce practices derogatory to the dignity of woman. It needs little
arguments to point out that a man marrying up to four wives or
divorcing his wife by the utterance of word ‗Talaq‘ thrice; or refusal
to maintain a divorced wife after a limited period of time (three
months); are all practices derogatory to the dignity a woman.
Therefore, any member of the Muslim community, who resorts to
such practices, who himself or urges that such practices should be
immuned from legislation or that Article 44 itself must be wiped off
or restricted to persons other than Muslims, is violating Article 51A.
Whether that provision is unenforceable in the Courts of law are not
is a different
54
question; but in other countries such a person would have lost his
citizenship if not something more.
14. It is the most radical argument that Article 44 should not be
implemented because it is opposed to Sharia. It is pertinent to quote
former CJI Justice Chagla‘s article ‗Plea for Uniform Civil Code‘ -
―Article 44 is a mandatory provision binding the Government and
it is incumbent upon it is to give effect to this provision… The
Constitution was enacted for the whole country, it is binding for the
whole country, and every section and community must accept its
provisions and its Directives‖.
15. As far as the plea of Muslim identity is concerned, it
is nothing but a relic of the two-nation theory, which was asserted
by the Muslim leaders to carve out a separate State on the basis of
religion. On the other hand, the nationalist Indian leaders all along
urged that there was only one Nation, viz. India; and after the
Muslims went away on the partition, there was nothing to stand in
the way of proclaiming in the Preamble that the goal of India was
One Nation united by the bond of fraternity. There should not be
any fear of losing identity when the Constitution guarantees
religion, language, culture, in Articles 26, 29, 30. After the partition,
the Muslims who preferred to remain in divided India knew very
well what they could get from the secular government. To cry for
55
more, is nothing but a resurrection of slogan ―Islam in Danger‖
which led to the partition of India.
16. It is next contended that even though a common civil code is
desirable, it could not be brought about until the Muslim
themselves came forward to adopt it. It is only a diluted form of
plea for abolition of Article 44 altogether, because the Article may
virtually be effaced if the Muslims never come forward with their
consent. None of Directives lay down that they can be implemented
only if 100% consents. Constitution was adopted after due
deliberation as to its provisions being beneficial to the people of
India, by a ConstituentAssembly havingMuslimrepresentatives.
17. Illiterate and ignorant parents do not desire that their
children should go to school instead of helping them in agriculture,
or earning money in factories. Should the implementation of Article
45 wait till these people give their consent? The controversy
arising from the Shah Bano case clearly exposed that it is only a
section of the Muslim community, who would not accept it. Is there
any precedent in any country, where the caprices of such a fraction
of the population having allowed to stand in the way of the unity
and progress of the entire nation and the implementation of the
fundamental law of the country, adopted by a solemn Constituent
Assembly? Article 44 of the Constitution is addressed to the State
thus it is duty
56
of the State to implement it in letter and spirit in consonance with
Article 14, 15 and 21 of the Constitution.
18. The Apex Court has observed: ―A belief seems to have gained
ground that it is for the Muslims community to take a lead in the
matter of reforms of their personnel law…….But it is the State
which is charged the duty of securing a uniform civil code for the
citizens of the country. This duty has been imposed on the State with
the object of achieving national integration by removing disparate
loyalties to laws which have conflicting ideologies.‖ The question
arises – why then has the Union Government failed to discharge this
Constitutional mandate for more than six decades? The Answer has
been pithily answered by the Court - lack of political courage –
which many other responsible persons have amplified as the fear of
losing Muslim votes at the next election. The State has not only
failed to implement the Article 44 but it has violated the norm of the
much-vaunted secularism.
19. It is also curious that the Government has not yet
protested against the decision of the Indian Muslim Personal Law
Board to setup parallel Courts in many localities to decide the cases
under Shariat, even though the setting up of such a parallel Court
will not only sound a death knell to the Article 44 but also to the
provisions in the Constitution providing for one system of judiciary
for
57
the entire nation and all its people. It is a retrograde step cutting at
the roots of the Constitution of the India.
20. It is also urged that the Shariat is immutable being founded on
the Koran which is ordained by the God. Apart from the historical fact
that this issue has been concluded by the partition of India and
adoption of the Constitution of India, it has been belied by the
multifarious changes by way of reform in all the Muslim State e.g.
Egypt, Jordan, Morocco, Pakistan, Syria, Tunisia, Turkey – where no
question of Hindu dominance never arose. It is pertinent to State
the Report of the Commission on Marriage and Family Laws, which
was appointed by the Government of Pakistan in 1955, and which
should have demolished, once for all, the plea that the Shariat is
immutable. In words of Allama Iqbal, ―The question which is likely
to confront Muslim Countries in the near future, is whether the Law
of Islam is capable of evolution – a question which will require great
intellectual effort, and is sure to be answered in the affirmative.‖
21. One more logic is given that even if a common civil
code is formulated, it should be optional for the Muslims to adopt
its provisions. Applicant states that it is only a diluted version of the
forgoing pleas, viz. that the Shariat is immutable; that no Code can
be imposed on the Muslims without their consent. It is unmeaning
to draw-
58
up a uniform civil code as enjoined by Article 44 if it is not binding on
every person within the territory of India.
22. Polygamy is totally prohibited in Tunisia and Turkey.
In countries like Indonesia, Iraq, Somalia, Syria, Pakistan and
Bangladesh, it is permissible only if authorized by the prescribed
authority. Unilateral Talaq has been abolished in Egypt, Jordan,
Sudan, Indonesia, Tunisia, Syria and Iraq etc. In Pakistan and
Bangladesh, any form of extra judicial Talaq shall not be valid
unless confirmed by an arbitration council but in India, it is
continuing. The Dissolution of Muslim Marriage Act 1939 provided
Muslim women to obtain dissolution in certain cases, which they do
not have under the Shariat. Under the Act, marriage with another
woman would be treated as an act of ‗cruelty‘ to bar a husband‘s suit
for restitution of conjugal rights. The Act has been adopted in
Pakistan and Bangladesh with amendments. The statement of
objects and reasons of the Act, which has been conceded by Muslims
in India, Pakistan and Bangladesh is illuminating: ―There is no
provision in the Hanafi Code of Muslim Law enabling a married
Muslim women to obtain a decree from the Court dissolving her
marriage in case a husband neglects to maintain her, makes her life
miserable by deserting or persistently maltreating her or absconds
leaving her un- provided for and under other circumstances. The
absence
59
of such a provision has entailed unspeakable misery to
innumerable Muslim women in British India.‖
23. History of triple-talaq (Talaq-Ul-Biddat) is intriguing.
(a) It has no sanction in the Koran and the Shiahs don‘t recognize
its validity. Under Shiah Law, divorce by the husband may be valid
only if the husband pronounces an Arabic formula in the presence of
two witnesses. (b) Even though contrary to the Shariat, Hanafis
(that is Sunnis) follow this form of Talaq as an ‗irregular‘ form,
founded on practice introduced by the Ommayede monarchs in the
second century of the Mohammedan era. During the British regime,
many High Courts condemned it as contrary to Shariat and upheld
its validity on the ground of practice. This Hon‘ble Court has also
declared it void.
24. Under the Constitution, controversy continued and various
Muslim scholars expressed their opinion against triple-talaq. The
Government, however, remained inactive in order to appease the
sentiments of one section of the Muslim population, viz., the Sunnis.
On 21.05.1993, the Jamiat Ahle Hadith, the highest authority of
Shariat has come out with the conclusion that Talaqul-Ul-Biddat is
contrary to Shariat. If Government is serious to bring about a
common civil code, it should now come forward on support of the
aforesaid authoritative pronouncement instead of being beguiled
by statements issued by few

60
fundamentalists led by Personal Law Board, which is a NGO,
registered under the Society registration Act 1860.
25. Shariat is controlled by legislation in Pakistan and
Bangladesh. In India, a uniform law of maintenance was adopted by
Section 488 of the CrPC. When Section 125 of the CrPC extended to
divorced women, Muslims contended that it should not be applied to
them as it was contrary to Shariat but this contention was turned
down by the Apex Court. The argument that according to Muslim
Personal Law, husband‘s liability to provide for the maintenance of
his divorced wife is limited to the period of iddat was rejected by
the Apex Court. It was held that Section 125 of CrPC overrides the
personal law. To overcome this decision, Parliament enacted Muslim
(Protection of Rights of Divorce) Act 1986. In spite of legislation, the
Apex Court has held that the Act 1986 actually codifies what has been
stated in Shah Bano‘s Case. It was held that as regards to divorced
Muslim women‘s right, the starting point should be Shah Bano‘s
Case, and not the original texts or any other material – all the more
so when varying versions as to the authenticity of the source or
shown to exist. It was held that the law declared in Shah Bano‘s Case,
was after considering ―Holy Quran‖ and other Commentaries and
texts. It was observed that the rationale behind Section 125 of CrPC
is to avoid vagrancy or destitution on the part

61
of a Muslim women. Article 21 of the Constitution was also taken
into consideration.
26. The Supreme Court interpreted that under Section 3 of the
Muslim Women (Protection of Rights and Divorce) Act 1986, a
Muslim husband is liable to make provision for the future of a
divorced wife even after the iddat period. [Sabra Shamim versus
Maqsood Ansari (2004) 9 SCC 606] Justice Khalid of Kerala High
Court (as his Lordship then was) reminded the plight of Muslim
women and wanted the law to be amended to alleviate their
sufferings. The above two decisions were approved by the Supreme
Court in Shamim Ara versus State of UP [(2002) 7 SCC 518]. In
regard to tribal women, the Court recognized the laws as patriarchal
and declined to give a general direction regarding customs and
other inheritance laws which discriminated women. The Court
protected the rights of women by suspending the exclusive rights
of male succession till the women chose other means of livelihood.
This enactment cannot, therefore, be cited in support of the
contention that Muslim Personal Law is immutable and cannot be
subjected to legislation. In this context, we may recall the concession
made by Mr. Nasiruddin in the Constituent Assembly, that certain
aspects of the Civil Procedure Code, 1908, have interfered with our
Personal Law and very rightly so and also that marriage and
62
inheritance are similar practices associated with religion.
[Constituent Assembly Debate Vol-VII, P542]
Respected Sir,
Keeping in view the above stated facts and circumstances, the
constitutional obligation of the Union Government to implement
Article 44 in consonance with Article 14, 15 and 21 of the
Constitution, for all the Citizens throughout the territory of India, I
request you to:
a) constitute a High Level Expert Committee or a Judicial Commission
or direct the Law Commission of India to draft a Uniform Civil Code
for all the citizens of India, considering the best practices of all the
religions and sects, Civil Laws of the developed countries,
international conventions in consonance with Article 44 read with
Article 14, 15 and 21 of the Constitution and publish it on the
website for at least 30 days for comprehensive public debate and
feedback before introducing it in Parliament;
b) take appropriate steps to make a Uniform Civil Code for all the citizens
of India in spirit of Article 44 read with Article 14, 15 and 21 of the
Constitution and International Conventions on top priority without
further delay.
Thanks and Warm Regards.
Ashwini Kumar Upadhyay

Office: 15, M.C. Setalvad Chambers, Supreme Court
of India, New Delhi-110001,
63
Residence: G-284, Govindpuram, Ghaziabad-201013,

Phone: 8800278866, 9911966667, Email: [email protected]
****************

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1

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION WRIT

PETITION (CIVIL) NO 202 OF 2018

(UNDERARTICLE32 OF THECONSTITUTION OF INDIA)

IN THE MATTER OF:

ASHWINI KUMAR UPADHYAY …PETITIONER

UNION OF INDIA& ANOTHER ...RESPONDENTS

[FOR INDEX KINDLY SEEINSIDE]

(ADVOCATE FOR PETITIONER: R.D.UPADHYAY)

On 16.10.2015, while deciding the Civil Appeal - 7217/2013 [Prakash &

others v. Phulavati & others], this Hon‘ble Court ordered registration of a

PIL [Suo Motu Writ (Civil) 2 of 2015] to consider gender discrimination

suffered by Muslim women owing to “arbitrary divorce and second

marriage of their husbands during the currency of their first marriage”.

government to frame a uniform civil code to “help in the cause of national

integration” in the Shah Bano case.

Issuing notices to Attorney General of India and National Legal

Justice Adarsh Kumar Goel sought their reply by 23.11.2015 on a

question as to if “gender discrimination suffered by Muslim women should

not be considered a violation of the fundamental rights under Articles 14, 15

and 21 of the Constitution and international covenants”.

The verdict dated 16.11.2015 refers to dozens of its own judgments

gender discrimination is a violation of the constitutional rights of women.

rights of Muslim women came up during discussions with lawyers on

gender discrimination at the hearing of a batch of civil appeals on the issue of

a daughter‟s right to equal shares in ancestral property under the Hindu

succession law. The judgment said:

“An important issue of gender discrimination which, though not directly

parties which concerns rights to Muslim women. Discussions on gender

guarantee of the Constitution; Muslim women are subjected to

discrimination. There is no safeguard against arbitrary divorce and

of the Constitution and international conventions andcovenants.”

vs. State of Haryana in 2003 in which a three-judge Bench of this Hon‘ble

Court intervened in personal law to uphold the dignity of women, shows

Court held that “polygamy is injurious to public morals and can be

superseded by the State just as practice of „Sati‟.”

Hon‘ble Justice Goel referred to the John Vallamattom case

gender discrimination shown to women make-up artists in the film

On 17.05.2016, petitioner submitted a representation to the

Government to constitute Expert Committee or Judicial Commission

to draft a Uniform Civil Code in spirit of Article

44 of the Constitution. On 01.07.2016, Central Government asked the

Law Commission of India to examine issue of Uniform Civil Code in

spirit of Article 44 of Constitution.

On O7.10.2016, the Law Commission of India sought public

opinion on the exercise of revising and reforming family laws in the

context of Article 44 of the Constitution.

On 15.11.2016, Petitioner filed an application for impleadment as

Co-petitioner (IA-85002/2016), which was registered as IA-19 in

SMW(C) 2/2015 and on 12.05.2016, Senior Advocate V. Shekhar argued

On 22.8.2017, this Hon‘ble Court in SMW(C) 2/2015 has held that

Section 2 of the Muslim Personal Law (Shariat) Application Act,1937, is

arbitrary and violative of Articles 14, 15 and 21 of the Constitution,

insofar as it seeks to recognize practice of Talaq-Ul-Biddat. Similarly,

Nikah-Halala and Polygamy is also unconstitutional and violative of

498A, 375 and 494 of the IPC, respectively.

Polygamy and Nikah-Halala is injurious to public order, morality

human sacrifice or practice of sati. But, Executive is inactive. Hence, this

petition in public interest.

Civil Appeal No-7217/2013, Prakash & Others v.

Phulwati & Others, taken suo-motu cognizance of

17.05.2016: Petitioner submitted a Representation to the Government