This Is In The Domain Of Legislature: Supreme Court Dismisses Pleas Seeking Uniform Civil Laws

The Supreme Court today dismissed a batch of cases, most of them filed by Advocate Ashwini Kumar Upadhyay, seeking uniform laws for all citizens relating to divorce, adoption, guardianship, succession/inheritance and maintenance.

A Bench comprising CJI DY Chandrachud, Justice PS Narasimha and Justice JB Pardiwala dictated its order thus:- "In substance, the petitioner seeks the enactment of gender-neutral and religion-neutral legislations in matters governing divorce, adoption, guardianship, succession/inheritance and maintenance. We have heard Ashwini Kumar Upadhyay for the petitioner, Solicitor General Tushar Mehta appears on behalf of the Union, Senior Advocate Muzafa Ahmedi for an intervenor. The Solicitor General states that as a matter of policy, the Union does support enactment of uniform legislation. It is his submission that such an intervention can only be through a legislative process. On a considered view of the pleading and submissions, we are not inclined to entertain the petitions under Article 32".

The Court also said that granting relief will necessitate direction to legislate law. It lies in the domain of legislature. Mandamus cannot be issued to legislate, the CJI said.

The Bench added that the direction sought to Law Commission will also be in aid of legislation, which is in the legislative domain. 

The Court granted liberty to the parties to point out the matter from out of the 17 matters that were listed before the Court, which have different prayers. The Court delinked the plea by journalist Banazeer Hina, who had challenged 'Talaq-e-Hasan' and other forms of "unilateral extra-judicial talaq".

The petition filed by Advocate Ashwini Kumar Upadhyay states that the divorce procedure is very complex and neither gender-neutral nor religion-neutral. While Hindus are governed under Hindu Marriage Act 1955. Muslims, Parsis and Christians have their own personal laws. Couples belonging to different religions have to seek divorce under the Special Marriage Act, 1956. Similarly, if either partner is a foreign national then one has to seek divorce under the Foreign Marriage Act 1969. The distinction promotes inequality against women and offends Articles 14 and 15 of the Constitution, as per the petitioner.

The petition demands uniform grounds for divorce regardless of religion, race, caste or sex throughout the territory of India. The petitioner also seeking uniform succession law contends that discriminatory grounds of succession and inheritance not only reinforce patriarchal stereotypical notions but contravenes principles of gender justice, equality and dignity of women guaranteed under Articles 14, 15 and 21 of India. The petitioner also seeks gender-neutral, religion-neutral, uniform laws of maintenance and alimony and adoption, in separate petitions.

The Court had indicated earlier that the matters lie in the domain of the legislature. 

The Center had filed an affidavit opposing the petitions on the ground of maintainability. The Centre in its affidavit has challenged the maintainability of the Petitions filed by the Lawyer stating that a Writ of Mandamus cannot be issued to the Legislature to enact a particular piece of legislation.

Cause Title- Ashwini Kumar Upadhyay v. Union of India