Professional Documents
Culture Documents
AshwiniKumarUpadhyay WPC 202 of 2018
AshwiniKumarUpadhyay WPC 202 of 2018
VERSES
PAPER BOOK
SYNOPSIS
This comes 30 years after this Hon‘ble Court urged the Centre
Services Authority of India, the Division Bench of Justice Anil Dave and
since 1990 in order to record the Apex Court‘s growing realization that
Writing the judgment, Hon‘ble Justice Goel said - the decision to consider the
involved in this appeal, has been raised by some of the learned counsel for the
discrimination led to this issue also. It was pointed out that in spite of
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
The Hon‘ble Justice Goel noted that recent judgments, like Javed
the change in attitude. It is pertinent to state that in the Javed case, the
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
industry.
4
for petitioner.
Articles 14, 15 and 21 of the Constitution. But, Executive has not declared
that Triple Talaq, Polygamy and Nikah Halala are offence under Sections
and health also. Thus, can be superseded by the State just it prohibited
LIST OF DATES
16.10.2015: The Division Bench of this Hon‘ble Court, while deciding the
genderdiscrimination.
44 of the Constitution.
44 of the Constitution.
SMW(C)2/2015.
recognizeTalaq-Ul-Biddat.
public interest.
6
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
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
Petitioner
subsequent date, when this Hon‘ble Court declared Triple-Talaq void and
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.
oblique reasons in filing this petition. It is not guided for gain of any other
which has or could have legal nexus, with the issue involved in this writ
10. It is well settled that Common Law has primacy over the
―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
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
judgment on 22.8.2017.
basic rights guaranteed under Articles 14, 15, 21 and public order,
13.This Hon‘ble Court in Triple Talaq Case [SMW(C) 2/2015] has held that
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
15.Presently, once a Muslim woman has been divorced, her husband is not
divorces her so that her previous husband can re-marry her. This
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
with three children to her father‘s house suggesting that she will have to
sati and has been banned under Section 494 of the IPC. Unfortunately,
priests like imams, maulvis, etc. who propagate, support and authorize
such gross practices which treats them as chattel, thereby violating their
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
18.The Constitution has primacy over the Common Law and Common Law
has primacy over Person Laws. So, India doesn‘t need another personal
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
which in turn have a critical impact on their social and economic rights to
titled “High-level panel seeks overhaul of family laws”, the report of the
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
impression that the law sanctions the sinful form of talaq and the
rights of married Muslim women and offends Articles 14, 15 and 21.
to that form interferes with the Muslim women‘s right to profess and
to say the least and is, thus, violative of Articles 14, 15 and 21. It is,
Nikah-Halala.
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.
13
harmonious reading of Part III of the Constitution clarifies that the freedom
other provisions of Part III of the Constitution but also public order,
succession. Despite the observations of this Hon‘ble Court for the past
that the Courts have fairly refrained from enforcing through directions and
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
28.This Hon‘ble Court has held that discrimination against women under
to be examined.
after divorce without the need for an intervening marriage with a third
has been severely restricted by prescribing that a married man may not
enter into another marriage without just reasons for the proposed
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
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
Civil and Political Rights (to which India acceded on 10.04.1979) and
critically undermines the dignity and worth of women. On the same lines,
only the Talaq-e-Bidat but also practices of polygamy, and nikah halala
groups, bodies and leaders that permit and propagate such practices must
the Constitution.
though bad in theology‖ as well as observed that such view is not only an
also based on the concept that women are chattel belonging to men,
all other rights available under the laws of India. It is therefore submitted
constraints.
35.The Muslim Personal Law (Shariat) Application Act, 1937, by providing for
where the parties are Muslims, conveys a wrong impression that the law
36.The Dissolution of Muslim Marriages Act, 1939 fails to secure for Indian
Muslim women the protection from bigamy, which protection has been
Constitution.
the Constitution and, in any event, this has been declared a spiritual
valid form of divorce interferes with the Muslim women‘s right to profess
her to say the least and is, thus, violative of Articles 14, 15 and 21 of the
Constitution.
18
law that is unjust, nor exempts personal laws from the jurisdiction of 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,
Article 25, “subject to public order, morality and health and to the other
42.It is submitted that the Constitution does not preclude the State from
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
morality, and health and must therefore yield to the basic human and
religion.
19
44.The Legislature has failed to ensure the basic dignity and equality of
45.A complete ban on Polygamy and Nikah-Halala has long been need of the
personal law since the Constitution envisages equality, justice and dignity
for women.
Nikah –Halala while Indian Muslims are still being compelled to follow
such practice which neither has any basis in the Holy Quran nor is
indirectly, violates not only the basic human rights of women but also
Principles are its basic ideals. The Constitution makers poured their
secure the high ideals set forth in the Preamble and Part IV of the
embracing the life of the nation and include principles, which are
code for all the Indian citizens to promote fraternity, unity and national
seeks to divest religion from personal law and social relations and from
been done even in Muslim Countries like Turkey and Egypt. The object
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
50.It is to be noted that the several enactments, which have been made by
(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
Common civil code will help the cause of national integration by removing
is likely to bell the cat by making gratuitous concessions on this issue. It is for
the State,
22
which is charged with the duty of securing a uniform civil code and it has
beginning has to be made if the Constitution has any meaning. Role of the
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”.
minority community was rejected by Sh. Munshi: “An argument has been
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
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
spheres, which legitimately appertain to religion, and the rest of life must
early as possible, a strong consolidated nation. Our first problem and the most
we have got national unity but there are many factors and important
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
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
53.Sh. Alladi Krishnaswami Iyer said that a Civil Code ran into every
length on the matter. He said: “We have in this country a uniform code of
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
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
also observed that “the power of the Parliament to reform and rationalize
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
would not be affected thereby. It was held that personal law having been
44 seeks to divest religion from social relation and personal law. Marriage,
Article 25, 26 and 27. Hon‘ble Judges requested the Prime Minister of India
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
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
ideological concept, which led to partition was the assertion of the Muslims
that they constitute a ‗Nation‘ separate from the Hindus. Even though
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,
replaced by the ‗Unity and Integrity of the Nation‘ and Article 51A was
(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
that purpose they codified the Article 25(1) which guaranteed freedom
propagate religion, to all persons. But at the same time they sought to
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
but also of being a party to the violation of Article 44 and Article 51A
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
out that a man marrying up to four wives or divorcing his wife by the
Courts of law are not is a different question; but in other countries such
former CJI Justice Chagla‘s article ‗Plea for Uniform Civil Code‘ - “Article
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
63.As far as the plea of Muslim identity is concerned, it is nothing but a relic
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
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
themselves came forward to adopt it. It is only a diluted form of plea for
representatives.
30
people give their consent? The controversy arising from the Shah Bano
who would not accept it. Is there any precedent in any country, where the
way of the unity and progress of the entire nation and the implementation
implement it in letter and spirit in consonance with Article 14, 15 and 21.
gained ground that it is for the Muslims community to take a lead in the
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
conflicting ideologies.” The question arises – why then has the Union
than six decades? The Answer has been pithily answered by the Court -
67.The State has not only failed to implement the Article 44 but also violated
Government has not yet protested against the decision of the Indian
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
judiciary for the entire nation and all its people. It is a retrograde step
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
multifarious changes by way of reform in all the Muslim State e.g. Egypt,
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
the affirmative.”
32
forgoing pleas, viz. that the Shariat is immutable; that no Code can be
citizen of India.
Syria and Iraq etc. In Pakistan and Bangladesh, any form of extra judicial
they do not have under the Shariat. Under the Act, marriage with another
restitution of conjugal rights. The Act has been adopted in Pakistan and
the Act, which has been conceded by Muslims in India, Pakistan and
Muslim Law enabling a married Muslim women to obtain a decree from the
maltreating her or absconds leaving her un- provided for and under other
in the Koran and the Shiahs don‟t recognize its validity. Under Shiah Law,
Arabic formula in the presence of two witnesses. (b) Even though contrary
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
Jamiat Ahle Hadith, the highest authority of Shariat has come out with the
Shariat but this Hon‘ble Court turned down this contention. This
divorced wife is limited to period of iddat. It was held that Section 125 of
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
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
on the part of a Muslim women. Articles 14, 15, 21 were also taken into
consideration.
35
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
legislation.
interfered with our Personal Law and very rightly so and also that marriage
issues, including the practice of triple talaq and right to property for
about the viability of a UCC and will focus on family laws of all religions and
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
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,
codification can ensure gender equality; and whether the UCC should be
optional.
caste marriages, and the legal validity of the Uniform Civil Code vis-a-vis
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
GROUNDS
Nikah-Halala.
Biddat.
C. Because the Executive has not declared that provisions of the Indian
Rape under Section 375 of the IPC and Polygamy is an offence under
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 /
E. Because while deciding the Civil Appeal - 7217/2013 [Prakash & others v.
F. Because the Constitution has primacy over Common Law and Common
Law has primacy over the Personal Law. Thus, India doesn‘t need another
on its official website till date even after 16 months have been past.
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.
and Nikah-Halala.
J. Because Government has not taken apt steps against the decision of
of such a parallel Court will not only sound a death knell to the
one system of judiciary for the entire nation and all its people. It is a
PRAYER
Keeping in view the above stated facts and circumstances and appalling
c) declare that provisions of the IPC are applicable on all Indian Citizens and
Rape under Section 375 of the IPC, and Polygamy is an offence under
e) take such other steps as this Hon‘ble Court may deem fit and proper in
APPENDIX
********************
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
Respected Sir,
Principles are its basic ideals. The Constitution makers poured their
unity and integrity of the nation. It is duty of the State to direct their
2. The object of the Article 44 is to introduce a uniform civil code for all
bulk of these different items of civil laws have already been codified
during the British Rule and the major items still remaining for a
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
for framing a common civil code. A belief seems to have gained that it
their personal law. Common civil code will help the cause of national
which is charged with the duty of securing a uniform civil code and it
4. One of the main objection against uniform civil code that it would be
Act was passed, the Khojas and Cutchi Memons were highly
generations since they became converts they had done so. They didnt
Legislature where certain Muslim members who felt that Sharia law
Khojas and Cutchie Memons unwillingly had to submit to it. When you
which may accrue, to the whole community and not to the customs.
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
divorce religion from personal law, from what may be called social
succession. What have these things got to do with religion. I really fail
have got national unity but there are many factors and important
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
the opposition is not, if I may say so, very well advised. I hope our
5. Sh. Alladi Krishnaswami Iyer said that a Civil Code ran into every
Civil Code.
that the country has practically a Civil Code, uniform in its contents
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
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
under Article 25, 26 and 27. Hon‘ble Judges requested the Prime
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
and declared that no direction have been issued for any legislation.
At the same time, the Court did not express any dissenting view of
‗divide and rule‘ and for that purpose, they would at times fan
constitute a
divided India to aspire for the unity of the one nation, namely,
replaced by the ‗Unity and Integrity of the Nation‘ and Article 51A was
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;
of dignity of women.
‗Secular State‘ and with that purpose they codified the Article
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
Constitution.
is a different
54
question; but in other countries such a person would have lost his
former CJI Justice Chagla‘s article ‗Plea for Uniform Civil Code‘ -
Constitution was enacted for the whole country, it is binding for the
whole country, and every section and community must accept its
religion. On the other hand, the nationalist Indian leaders all along
urged that there was only one Nation, viz. India; and after the
the way of proclaiming in the Preamble that the goal of India was
religion, language, culture, in Articles 26, 29, 30. After the partition,
well what they could get from the secular government. To cry for
55
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
thus it is duty
56
18. The Apex Court has observed: ―A belief seems to have gained
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
arises – why then has the Union Government failed to discharge this
Constitutional mandate for more than six decades? The Answer has
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.
will not only sound a death knell to the Article 44 but also to the
for
57
the entire nation and all its people. It is a retrograde step cutting at
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
should have demolished, once for all, the plea that the Shariat is
forgoing pleas, viz. that the Shariat is immutable; that no Code can
to draw-
58
not have under the Shariat. Under the Act, marriage with another
objects and reasons of the Act, which has been conceded by Muslims
leaving her un- provided for and under other circumstances. The
absence
59
(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
its validity on the ground of practice. This Hon‘ble Court has also
declared it void.
Section 488 of the CrPC. When Section 125 of the CrPC extended to
the Apex Court. It was held that Section 125 of CrPC overrides the
Apex Court has held that the Act 1986 actually codifies what has been
Case, and not the original texts or any other material – all the more
shown to exist. It was held that the law declared in Shah Bano‘s Case,
texts. It was observed that the rationale behind Section 125 of CrPC
into consideration.
divorced wife even after the iddat period. [Sabra Shamim versus
Court (as his Lordship then was) reminded the plight of Muslim
aspects of the Civil Procedure Code, 1908, have interfered with our
Personal Law and very rightly so and also that marriage and
62
Respected Sir,
for all the citizens of India, considering the best practices of all the
b) take appropriate steps to make a Uniform Civil Code for all the citizens
further delay.