GENDER JUSTICE AND THE UNIFORM CIVIL CODE:

A SPECIAL EMPHASIS ON WOMEN’S RIGHTS UNDER PERSONAL LAWS

~ Anushka Dhruve

India is renowned for its multiplicity of religions coloured with unfair caste-based divisions.
But one subject which all the religions and castes have agreed upon is the subjugation of
women. Discriminatory practices against women, which have been comfortably legitimized
under the garb of religion, are ultra vires, that is, they are violative of the Indian Constitution.
The dismissal of women’s rights under the various personal laws have violated a series of
provisions under the Indian Constitution which includes the right to equality under Article 14
which states the provision for Equality before law, Article 15 including the prohibition of
discrimination on the grounds of religion, race, caste, sex, and the Right to life and personal
liberty under Article 21. The main contention here is that, women’s rights under personal
laws or any other law should not be treated as a benefaction bestowed upon them but rather
as an entitlement which they have been wrongly deprived of.

21st LAW COMMISSION SURVEY REPORT OF 2016

The 21st Law Commission chaired by Justice Balbir Singh Chauhan in 2016 took up the
task of compiling an academic report on the stance of the Indian populace for the application
of the Uniform Civil Code. Some of the major questions included:-

1. Question 11 raises the need to accept uniform grounds of divorce across all personal
laws for the purpose of simplifying not only the divorce proceedings but also the
matters that follow. The irrational separation period for Christians under Section 10
(a) of the Indian Divorce Act of 1957 directs that it is only after a compulsory
judicial separation of two years can a petition for dissolution of marriage by mutual
consent be presented before the court. This law is unfair because all other personal
laws such as Section 28 of the Special Marriage Act, Section 32(b) of the Parsi
Marriage and Divorce Act, and Section 13(b) of the Hindu Marriage Act -
prescribe a maximum statutory period of separation as one year.

In order to cite an example, the landmark case of Ms. Jordan Diengdeh vs. S.S.Chopra
(1985 AIR 935) can be taken into consideration. The case was brought before and decided by
the apex court, by a bench consisting of Justice O.Chinnappa and Justice R.B. Misra. This
case emphasized the necessity of a Uniform Civil Code owing to the non-uniformity in
grounds for dissolution of marriage.

Facts of the case:

In this case, the petitioner, that is the wife, was a Presbytarian Christian belonging to the
Khasi tribe of Meghalaya. She was married to the respondent under the Indian Christian
Marriage Act 1872. In 1980, the petitioner filed a petition for declaration of nullity of
marriage or judicial separation mainly on the grounds of impotency of her husband under
section 18 (petition for decree of nullity), section 19(1)(impotency as a ground for
divorce) and section 22 (judicial separation on the grounds of cruelty, adultery and
desertion) of the Indian Divorce Act. A single judge bench of the Delhi high court
rejected the prayer for declaration of nullity of marriage, but granted a decree for judicial
separation on the ground of cruelty. Therefore she appealed to the Supreme Court1.

Judgement:

(1) It was held that when compared to the provisions for judicial separation, divorce and
nullity of marriage in other laws, the law prescribed for dissolution of Christian marriages
was ‘far, far from uniform.’

(2) The Hindu marriage Act allows a period of one year from the date of passing the
decree for judicial separation, if cohabitation has not resumed meanwhile. However, there
is no such provision under the Indian Divorce Act and a person seeking the decree will
have to continue to cohabit for two years and cannot follow it up with a decree of divorce
even on grounds of cruelty or other such reasons.

(3) The court observed that in the current case, there was no point in the continuance of
the marriage because it had evidently and completely broken down. The parties were
bound together by a marital tie which was better untied. However, this could not be done,
for the Indian Divorce Act does not offer mutual consent or irretrievable breakdown of
marriage as a ground to seek divorce.

(4) The court in the judgement emphasized the need for the intervention of the legislature
to provide a uniform civil code for marriage and divorce as provided under article 44. The
court believed that the time had arrived to provide by law a way out of the unhappy

1
Jordan Diengdeh vs. S.S.Chopra, A.I.R. 1985 S.C. 935 (India)
 situations in which couples find themselves in. It is necessary to introduce irretrievable
break-down of marriage, and mutual consent as grounds of divorce in all cases.

2. Question No. 10 which brought attention to the need of establishing a uniform age for
consent to marriage amongst all personal laws. There exists a discrepancy amongst laws
in the country in relation to marriage as personal laws possess a strong hold on the
institution of marriage.

The Central legislations like the Child Marriage Restraint Act (1929) in its Definitions
clause under Section 2 defines a ‘child’ as one who has not completed 21 years if male
and 18 years if female, hence, making any marriage with a child a criminal offence2; the
Special Marriage Act (1954) limits marriages to be a civil contract devoid of ceremonial
requirements and mandates under Section 4 that for a valid marriage the parties ought to
satisfy the essential legalities of a valid contract3, and finally the Prohibition of Child
Marriage Act (2006) criminalizes the act of solemnizing child marriages under Section
10 which mentions a punishment extending to either 2 years imprisonment or one lakh
rupees as fine, or both4. These are in variance with the Muslim law which allows the
marriage of children under 16 years of age with the permission of the Sharia authorities
and the ground realities in rural areas also point towards the existence of child marriages
amongst Hindus.

In order to substantiate the case of Ashwini Kumar Upadhyay vs. Union of India and
another, is important. In 2019 Ashwini Kumar Upadhyay, a lawyer filed a writ petition
under Article 226 in the Delhi High Court requesting attention of the court and the central
government towards the discriminatory minimum age limit for marriage under the
personal laws. The main contention put forward by the petitioner was that the difference
in age limit was based not only on gender stereotypes but also amongst the various central
and personal laws. The petitioner claimed that no scientific backing could be established
behind setting the legal age of marriage as 21 for male and 18 for females. The court
agreed with the deliberations put forward by the petitioner and requested the government
to conduct proper enquiry into establishing either a uniform codified law or answer the
questions raised by the petitioner. In 2021, another writ petition was filed by Ashwini
Kumar Upadhyay wherein a plea was made to the Supreme Court to transfer the pending

2
The Child Marriage Restraint Act, 1929, No. 19, Acts of Imperial Legislative Council, 1929 (India)
3
The Special Marriage Act, 1954, No. 43, Acts of Parliament, 1954 (India)
4
The Prohibition of Child Marriage Act, 2006, No. 25, Acts of Parliament, 2006(India)
 cases related to the uniform age for marriage in the Delhi and Rajasthan High courts. The
Chief Justice S.A. Bobde alongwith the bench agreed to proceed with transferring the
cases to the Supreme Court for a speedy resolution and to ensure justice.

3. Question 4 directly delves into the topic of gender equality being ensured by the
codification of personal laws. A codified law is expected to fall within the purview of
Judicial Review and is likely not to be discriminatory or arbitrary and at the same
time it will give the legislature the window of bringing about necessary changes when
required. An example of such an occurrence can be taken from the past wherein in
2005 the Parliament by an amendment awarded equal coparcenary rights to daughters
of their father’s property similar to that of the sons under the Hindu Succession Act
which is a codified law.

INDIA’S INTERNTIONAL OBLIGATION TO ENSURE GENDER JUSTICE

India owes gender equality in personal laws as an international obligation if not as a

domestic necessity. India, by way of ratification, has made the International Convention
on Civil and Political Rights and the International Convention on the Elimination of
All Forms of Discrimination against Women, enforceable in nature. India’s
commitment to these conventions necessitates it to obliterate discrimination against
women on grounds of race, religion, or sex5.

It is the need of the hour to make laws on Marriage, guardianship, succession, and divorce
secular in nature. The rectification of personal laws, whether through codification of personal
laws or their unification as a single code, must be the major agenda governing the authorities.
A Uniform Civil Code based on the ideologies and interests of one particular religious
majority is likely to conclude in a pandemonium of sorts. Hence, the content of the Code
must be a reflection of diversity, if at all implemented. This contention can better be
understood by an excerpt from Lord Macaulay’s speech- “Our principle is simply this-
uniformity where you can have it-diversity where you must have it- but in all cases
certainty.6”

5
Leila Seth, A Uniform Civil Code: Towards Gender Justice, Vol No. 31, I.I.C.Quarterly, 40, 40-54, (2005)
6
XIX Hansard’s Debates, 3rd series, p.531-533.