Ahmedabad Women Action Group ... vs Union Of India on 24 February, 1997

    PETITIONER:

AHMEDABAD WOMEN ACTION GROUP (AWAG) & ORS.

 Vs.

RESPONDENT:

UNION OF INDIA

DATE OF JUDGMENT: 24/02/1997

BENCH:

CJI, SUJATA V. MANOHAR, K. VENKATASWAMIW I T HWRIT PETITION (CIVIL) NO. 196 OF
1996LOK SEVAK SANGH & ORS.V.UNION OF INDIAW I T HWRIT PETITION (CIVIL) NO. 721
OF 1996YOUNG WOMAN CHRISTIAN ASSOCIATION (YWCA) & ORS.V.UNION OF INDIA

ACT:

HEADNOTE:

JUDGMENT:

        J U D G M E N T

VENKATASWAMI. J.

     All these Writ Petitions are filed as Public Interest Litigation. In W.P.
(C) No. 494/96. the reliefs prayed foe are as follows :

     (a) to declare muslim Personal Law which allows ploygamy as void as
offending Articles 14 and 15 of the Constitution;

     (b) to declare Muslim Personal Law which enables a Muslim male to give
unilateral Talaq to his wife without her consent and without resort to judicial
process of courts. as void, offending Articles

     13. 14 and 15 of the Constitution; (c) to declare that the mere fact that a
Muslim husband takes mote than one wife is an act of cruelty within the meaning
of Clause VIII (f) of Section 2 of Dissolution of Muslim Marriages Act. 1939.

     (d) to declare that muslim Women (Protection of Rights on Divorce Act. 1986
is void as infringing Articles 14 and 15.

     (e) to further declare that the provisions of Sunni and Shia laws of
inheritence which discriminate against females in their share as compared to the
share of males of the same status. void as discriminating against females only
on the ground of sex.

     In writ Petition (CO No. 196/96. the reliefs prayed for are the following:-

     (a) to declare Sections 2(2). 5 (ii) & (iii), 6 and Explanation to Section
30 of Hindu Succession Act. 1956. as void offending Articles 14 and 15 read with
Article 13 of the Constitution of India:

     (b) to declare Section (2) of Hindu Marriage Act, 1955, as void offending
Articles 14 and 15 of the Constitution of India;

     (c) to declare Sections 3 (2), 6 and 9 of Hindu minority and Guardianship
Act read with Sections 6 of Guardians and wards Act void; (d) to declare the
unfettered and absolute discretion allowed to a Hindu spouse to make
testamentary disposition without providing for an ascertained share of his or
her spouse and dependant. void.

     In writ Petition (C) No. 721/96. the reliefs prayed for are following :-

     (a) to declare Sections 10 and 34 of India Divorce Act void and also to
declare Sections 43 to 48 of Indian Succession Act void.

     At the outset. we would like to state that these Writ Petitions do not
deserve disposal on merits inasmuch as the arguments advanced by the learned Sr.
Advocate before us wholly involve issues of State policies with the Court will
not ordinarily have any concern. Further. We find that when similar attempts
were made, of course by others, on earlier occasions this Court held that the
remedy lies somewhere else and not by knocking at the doors of the courts. In
Maharishi Avadhesh vs. Union of India (1994 (supp) I SCC /18). This Court white
dismissing a Petition under Article 32 of the Constitution held as follows:-
"This is a petition by party in person under Article 32 of the Constitution. The
praters are two- fold. The first prayer is to issue a writ of mandamus to the
respondents to consider the question of enacting a common Civil Code for all
citizens of India. The second prayer is to declare Muslim Women Protection of
Right on Divorce) Act, 1986 as void being arbitrary and discriminatory and in
violation of Articles 14 and 15 Fundamental Rights and Articles 44. 38, 39 and
39-A of the Constitution of India. The third prayer is to direct the respondents
not to enact Shariat Act in respect of those adversely affecting the dignity and
right of Muslim Women and against their protection. These are all matters for
legislature. The writ petition is dismissed.

     In Reynold Raiamani and Another vs. Union of India and Another (1982) 2 SCC
474 this Court while dealing with the scope of sections 7 and 10 of the Indian
Divorce Act. 1869 held as follows :-

     4. It cannot be denied that society is generally interested in maintaining
the marriage bond and preserving the matrimonial state with a view to protecting
societal stability, the family home and the proper growth and happiness of
children of the marriage. legislation for the purpose of dissolving the marriage
constitutes a departure from that primary principle, and the legislature is
extremely circumspect in setting forth the grounds on which a marriage may be
dissolved. The history of all matrimonial legislation will show that at the
outset conservative attitudes influenced the grounds on which separation or
divorce could be granted. Over the decades, a more liberal attitude has been
adopted. Tostered by a recognition of the need for the individual happiness of
the adult parties directly involved. But although the grounds for divorce have
been liberalised, they nevertheless continue to form an exception to the general
principle favouring the continuation of the marital tie. In our opinion. When a
Legislative provision specifies the grounds on which divorce may be granted they
constitute the only condition on which the court has jurisdiction to grant
divorce. If grounds need to be added to those already specifically set forth in
the legislation, that is the business of the legislature and not of the courts.
It is another matter that in construing the language in which the grounds are
incorporated the courts should give a liberal construction to It. Indeed. We
think tat the courts must give the fullest amplitude of meaning to such a
provision. But it must be a meaning which the language of the section is capable
of holding. It cannot be extended by adding new grounds not enumerated in the
section.

     6. Miss Thomas appeals to us to adopt a policy of social engineering and to
give to Section / the content which has been enacted in Section 28 of the
special Marriage Act. 1958 and Section 18-B of the Hindu Marriage Act, 1955,
both of which provide for divorce by mutual consent. It is possible to say tat
the law relating to Hindu marriages and to marriages governed by the Special
Marriage Act Presents a more advanced stage of development in this area than the
Indian Divorce Act. However. Whether a provision for divorce by mutual consent
should be included in the Indian Divorce Act is a matter of legislative policy.
The courts cannot extend or enlarge legislative policy by adding a provision to
the statute which was never enacted there.

     In Pannalal Bansilal and others vs. State of A.P. and Another (1990 (2) SCC
498) Validity of Sections 15, 16, 1/. 29(5) and 144 of the A.P. Charitable Hindu
Religions and endowments Act. 1987 were challenged. Inter alia this Court held
:-

   The first question is whether it is necessary that the legislature should
make law uniformly applicable to all religions or charitable or public
institutions and endowments established or maintained by people professing all
religions. In a pluralist society like India in which people have faith in their
respective religions, people of India professing different religions faiths,
born in different castes, sex or sub-sections in the society speaking different
languages and dialects in different regions and provided a secular Constitution
to integrate all sections of the society as a united Bharat. The directive
Principles of the Constitution themselves visualise diversity and attempted to
foster uniformity among people of different rates. A uniform law. Though is
..................... enactment thereof. In one go perhaps may be counter-
productive to unity and integrity of the nation. In a democracy governed by rule
of law. gradual progressive change and order should be brought about. Making law
of amendment to a law is a slow process and the legislature attempts to remedy
where the need is felt most acute. It would, therefore, be inexpedient and
incorrect to think that all laws have to be made uniformly applicable to all
people in one go. The mischief or defect which is most acute can be remedied by
process of law at stages.

     In State of Bombay vs. Narasu Appa Mali (AIR 1952 Bombay 84), Chagla, C.J.,
while considering the validity of the Bombay Prevention of Hindu Bigamous
Marriages Act, 1946, observed as follows :-

     "A question has been raised as to whether it is for the Legislature to
decide what constitutes social reform. It must not be forgotten that in
democracy the Legislature is constituted by the chosen representatives of the
people. They are responsible for the welfare of the State and it is for them to
lay down the policy that the State should pursue Therefore. It is for them to
determine what legislation to put up on the statute bock in order to advance the
welfare of the State.

     It was further observed that :- "There can be no doubt that the Muslims
have been excluded from the operation of the Act in question. Even Section 494,
Penal Code, Which makes bigamy an offence applies to Parsis, Christians and
others, but not to Muslims because polygamy is recognised as a valid institution
when a Muslim male marries more than one wife. The question that we have to
consider is whether there is any reasonable basis for creating the Muslims as a
separate class to which the laws prohibiting polygamy should not apply. Now. It
is an historic fact that both the Muslims and the Hindus in this country have
their respective religious texts and which embody their own distinctive
evolution and which are coloured by their own distinctive backgrounds. Article
44 itself recognises separate and distinctive personal laws because it lays down
as a directive to be achieved that within a measurable time India should enjoy
the privilege of a common uniform Civil Code applicable to all its citizens
irrespective of race or religion. Therefore, what the Legislature has attempted
to do by the Hindu Bigamous Marriages Act is to introduce social reform lin
respect of a particular community having its own personal law. The institution
of marriage is differently looked upon by the Hindus and the Muslims. Whereas to
the former, it is a sacrament, to the latter it is a matter of contract. That is
also the reason why the question of the dissolution of marriage is differently
tackled by the two religions. While the Muslim law admits of easy divorce, Hindu
marriage is considered indissoluble and it is only recently that the State
passed legislation permitting divorce among Hindus. The State was also entitled
to consider the educational permitting divorce among Hindus. The State was also
entitled to consider the educational development of the two communities. One
community might be prepared to accept and work social reform; another may not
yet be prepared for it: and Art. 14 does not lay down that any legislation that
the State may be communitywise. From these considerations it follows that if
there is a discirmination against the Hindu in the applicability of the Hindus
Bigamous Marriages Act. that discrimination is not based only upon ground of
religion. Equally so if the law with regard to bigamous marriages is not
uniform, the difference and distinction is not arbitrary or capricious, but is
based upon reasonable grounds.

     Gajendragadkar J., in his concurrent but separate opinion expressed the
same view by observing as follows:- "The next question is whether this Act
discriminates against the Hindus in reference to the Christian and the Parsi
citizens of this State, in so the specially severe provisions as to punishment
and procedure. It is true that whereas under the general criminal law the
offence of bigamy is cognizable only on the complaint of the wife, the impugned
Act makes it cognizable so that the complaint of the wife, is unnecessary to
start the proceedings against the offending husband. The offence of bigamy is
compoundable under the general criminal law: but not under the impugned Act ;
and the word "abettor under the impugned Act is also wider than this question,
however, it must be remembered that the evil of bigamy prevailing amongst the
Hindus could not be effectively put down unless the offence was made cognizable
and unless amongst the abettors were included ever the priests who officiate at
Hindu Marriages. As I have already mentioned, Hindu marriage is a love and
devotion of the Hindu wife for her husband id well known. Legislature may well
have thought that it would be futile to make the offence of Hindu bigamy
punishable at the instance of the wife because Hindu wives may not come forward
with any complaint at all. Among the Christians and the Parsis, monogamy has
been practised for several years and marriage amongst them is a matter of
contract. Amongst them divorce is permissible, whereas amongst the Hindus it was
not permissible for so many years. If the Legislature acting on these
considerations wanted to provide for a special procedure in dealing with
bigamous marriages amongst the Hindus it cannot be said that the Legislature was
discriminating against the Hindus only on the ground of religion. It was for the
Legislature to take into account the social customs and beliefs of the Hindus
and other relevant considerations before deciding whether it was necessary to
provide for special provisions in dealing with bigamous marriages amongst them.
That clearly is the province of the Legislature and with the propriety of their
views or their wisdom Courts are not concerned. I, therefore, hold that there is
no substance in the argument that the penal provisions of the impugned Act
constitute discrimination against the Hindus only on the ground of religion.

   There is one more point with which I would like to deal. It has been argued
before us that the impugned Act should have been made State of Bombay. It is
said that if the impugned Act constitutes a measure of social reform. There is
no reason why the State Legislature should not have given the Mahomedan
community the benefit of this social reform. The Union of India is a secular
State and the State Legislature was wrong in making a distinction between its
citizens on the ground of religious differences and in applying the provisions
of the impugned Act only to Hindus. In part this argument is political and as
such we are not concerned with it. But part of the argument is based upon the
provisions of Article 14 of the Constitution of India and it is necessary to
deal with this aspect of the argument. The learned judge further observed as
follows :- "But it is argued that even as to this social reform, the State
Legislature should have made it all pervasive and should not have left the
Mahomedans outside its ambit. That. as I have already said, is partly a
political, and partly a legal argument. Whether it was expedient to make this
Act applicable to the Mahomedans as well as to the Hindus would be a matter for
the Legislature to consider. It is now well settled that the equality before the
law which is guaranteed by Article 14 is not offended by the impugned Act if the
Classification which the Act makes is based on reasonable and rational
considerations. It is not obligatory in taking gradual steps for social welfare
and reform does not introduce distinctions or classifications which are
unreasonable, irrational or oppressive, it cannot be said that the equality
before law is offended. The State Legislature may have thought that the Hindu
community was more ripe for the reform in question. Social reformers amongst the
Hindus have years past and the social conscience of the Hindus, according to the
Legislature, may have been mire in tune with the spirit of the proposed reform.
Besides, amongst the Mahomedans divorce has always been permissible and marriage
amongst them is a matter of contract. If the State Legislature acting on such
considerations decided to enforce this reform in the first instance amongst the
Hindus, it would be impossible in my opinion to hold that in confining the
impugned Act to Hindus as defined by the Act, it has violated the equality
before law as guaranteed by Article 14. In my opinion, therefore, the argument
that Article 14 is violated by the impugned Act mus fail."

     Gajendragadkar j. also expressed his opinion on the question whether Part
III of the Constitution applies to personal laws. The learned Judge observed as
follows :- "The Constitution of India itself recognises the existence of these
personal laws in terms when it deals with the topic falling under personal law
in item 5 in the Concurrent List-List III. This item deals with the topics of
marriage and divorce; infants and minors; adoption; wills, intestacy and
succession; joint family and partition; all matters in respect of which parties
in judicial proceedings were immediately before the commencement of this
Constitution subject to their personal law. Thus it is competent either to the
State or the Union Legislature to legislate on topics falling within the purview
of the personal law is not used in Art. 13, because, in my opinion, the framers
of the Constitution wanted to leave the personal laws outside the ambit of Part
III of the Constitution. They must have been aware that these personal laws
needed to be reformed in many material particulars and in fact they wanted to
abolish these different personal laws and to evolve one common code. Yet they
did not wish that the provisions of the personal laws should be challenged by
reason of the fundamental rights guaranteed in Part III of the constitution and
so they did not intend to include these personal laws within the definition of
the expression laws in force. Therefore, I agree with the learned Chief Justice
in holding that the personal laws do not fail within Article 13(i) at all."

     In Krishna Singh vs. Mathura Ahir and others (AIR 1980 SC 707) this Court
while considering the question whether a Sudra could be ordained to a religious
order and become a Sanyasi or Yati and, therefore, installed as a Mahant of the
Garwaghat Math according to the tenets of the Sant Mat Sampradaya, inter alia
held as follows :- "It would be convenient, at the outset, to deal with the view
expressed by the High Court that the strict rule enjoined by the Smriti writers
as a result of which Sudras were considered to be incapable of entering the
order of yati or sanyasi, has ceased to be valid because of the fundamental
rights guaranteed under Part III of the Constitution. In our opinion, the
learned Judges failed to appreciate that Part III of the Constitution does not
touch upon the personal laws of the parties. In applying the personal laws of
the parties. he could not introduce his own concepts of the law as derived from
recognised and authoritative sources of Hindu law, i.e. Smritis and commentaries
referred to, as interpreted in the judgment of various High Courts, except where
such law is altered by any usage or custom or is modified or abrogated by
statute,

     In Sarla Mudgal and others vs. union of India and Others (1995) 3 SCC 635
this Court observed :- "Article 33 is based on the concept that there is no
necessary connection between religion and personal law in a civilised society.
Article 25 guarantees religious freedom whereas Article 44 seeks to divest
religion from social relations and personal law. Marriage, succession and like
matters of a secular character cannot be brought within the guarantee enshrined
under Article 25, 26 and 27. The personal of the Hindus. such as relating to
marriage, succession and the like have all a sacramental origin. In the same
manner as in the case of the Muslims or the Christians. The Hindus along with
Sikhs, Buddhists and Jains have forsaken their sentiments in the cause of the
national unity and integration, some other communities would not, though the
Constitution enjoins the establishment of a "common civil code" for the whole of
India. However, none of the decisions referred to above were placed before the
Division Bench as they find no mention in the separate judgments of Kuldip
Singh, J. and R.M. Sahai, J. That is because there was no occasion to consider
whether Part III of the constitution of India had any application to personal
laws or not. Suffice it to say that we are satisfied that the arguments advanced
before us as pointed out at the outset involve issues. in our opinion, to by
dealt with by the legislature. We may further point out that the question
regarding the desirability of enacting a Uniform Civil Code did not directly
arise in that case. The questions which were formulated for decision by Kuldip
Singh, J. in his judgment were these :

     "[W]hether a Hindu husband, married under Hindu law, by embracing Islam,
can solemnise second marriage? Whether such a marriage without having the first
marriage dissolved under law, would be a valid marriage dissolved under law,
would be a valid marriage dissolved under law, would be a valid marriage qua the
first wife who continues to be Hindu? Whether the apostate husband would be
guilty of the offence under Section 494 of the Indian Penal Code (IPC)?" Sahai.
J. in his separate but concurring judgment referred to the necessity for a
Uniform Civil Code and said: "The desirability of Uniform Code can hardly be
doubted. But it can concretize only when social climate is properly built up by
elite of the society; statesmen amongst leaders who instead of gaining personal
mileage rise above and awaken the masses to accept the change."

     Sahai. J. was of the opinion that while it was desirable to have a Uniform
Civil Code, the time was yet not ripe and the issue should be entrusted to the
Law Commission which may examine the same in consultation with the Minorities
Commission. That is why when the Court drew up the final order signed by both
the learned Judges it said "the writ petitions are allowed in terms of the
answer to the questions posed in the opinion of Kuldip Singh, J." These
questions we have extracted earlier and the decision was confined to conclusions
reached thereon whereas the observations on the desirability of enacting the
Uniform Civil Code were incidentally made. In Madhu Kishwar & Others vs. State
of Bihar & Others (1996 (5) SCC 125). this Court while considering the challenge
made to certain provisions of the Chotanagpur Tenancy Act, 1908, observed as
follows:- "It is worthwhile to account some legislation on the subject. The
Hindu Succession Act governs and prescribes rules of succession applicable to a
large majority of Indians being Hindus, Sikhs, Buddhists, Jains etc. whereunder
since 1956, if not earlier, the female heir is put on a par with a male heir.
Next in the line of numbers is the Shariat law, applicable to Muslims,
whereunder the female heir has an unequal share in the inheritance, by and large
half of what a male gets. Then comes the Indian Succession Act which applies to
Christians and by and large to people not covered under the aforesaid two laws,
conferring in a certain manner heirship on females as also males. Certain
chapters thereof are not made applicable to certain communities. Sub-section (2)
of Section 2 of the Hindu Succession Act significantly provides that nothing
contained in the Act shall apply to the members of any Scheduled Tribe within
the meaning of clause (25) of Article 366 of the Constitution, unless otherwise
directed by the Central Government by means of a notification in the Official
Gazette. Section 3(2) further provides that in the Act, unless the context
otherwise requires, words importing the masculine gender shall not be taken to
include females. General rule of legislative practice is that unless there is
anything repugnant in the subject or context, words importing the masculine
gender shall not be taken to include females. General rule of legislative
practice is that unless there is anything repugnant in the subject or context,
words importing the masculine gender used in statutes are to be taken to include
females. Attention be drawn to Section 13 of the General Clauses Act. But in
matters of succession the general rule of plurality would have to be applied
with circumspection. The afore provision thus appears to have been inserted ex
abundanti cautela. Even under Section 3 of the Indian Succession Act, the State
Government is empowered to exempt any race, sect or tripe from the operation of
the Act and the tribes of Mundas, Oraons, Santhals etc. in the State of Bihar,
who are included in our concern, have been so exempted. Thus neither the Hindu
Succession Act, nor even the Shariat law is applicable to the custom-governed
tribals. And custom, as is well recognized, varies from people to people and
region to region."

     "In the fact of these divisions and visible barricades put up by the
sensitive tribal people valuing their own customs, traditions and usages,
judicially enforcing on them the principles of personal laws applicable to
others, on an elitist approach or on equality principle, by judicial activism,
is a difficult and mind-boggling effort. Brother K. Ramaswamy, J. seems to have
taken the view that Indian legislatures (and Governments too) would not prompt
themselves to activate in this direction because of political reasons and in
this situation, an activist court. apolitical as it avowedly is, could get into
action and legislate broadly on the lines as suggested by the petitioners in
their written submissions. However laudable, desirable and attractive the result
may seem, it has happily been viewed by our learned brother that an activist
court is not fully equipped to cope with the details and intricacies of the
legislative subject and can at best advise and focus attention on the State
polity on the problem and shake it from its slumber, goading it to awaken, march
and reach the goal. For, in whatever measure be the concern of the court, it
compulsively needs to apply, motion, described in judicial parlance as self-
restraint. We agree therefore with brother K. Ramaswamy, J. as summed up by him
in the paragraph ending on p.36 (para 46) of his judgment that under the
circumstances it is not desirable to declare the customs of tribal inhabitants
as offending Articles 14, 45 and 21 of the Constitution and each case must be
examined when full facts are placed before the court.

   With regard to the statutory provisions of the Act, he has proposed to the
reading down of Sections 7 and 8 in order to preserve their constitutionality.
This approach is available from p.36 (paras 47, 48) onwards of his judgment. The
words "male descendant wherever occurring , would include "female descendants".
It is also proposed that even though the provisions of the Hindu Succession Act,
1925 in terms would not apply to the Schedule Tribes, their general principles
composing of justice, equity and fair play would apply to them. On this basis it
has been proposed to take the view that the Scheduled Tribe women would succeed
to the estate of paternal parent, brother or husband as heirs by intestate
succession and inherit the property in equal shares with the male heir with
absolute rights as per the principles of the Hindu Succession Act as also the
Indian Succession Act. However, much we may like the law to be so we regret our
inability to subscribe to the means in achieving such objective. If this be the
route of return on the court's entering the thicket, it would follow a beeline
for similar claims in diverse situations, not stopping at tribal definitions,
and a deafening uproar to bring other systems of law in line with the line with
the systems of law in line with the Hindu Succession Act and the Indian
Succession Act as models. Rules of succession are, indeed susceptible of
providing differential treatment, not necessarily equal. Non-uniformities would
not in all events violate Article 14. Judge-made amendments to provisions,
should normally be avoided. We are thus constrained to take this view. even
though it may appear to be conservative for adopting a cautious approach, and
the one proposed by our learned brother is, regretfully not acceptable to us,"

     As a matter of fact the constitutionality of section 10 of the Indian
Divorce Act was challenged by an aggrieved husband and this Court in Anil Kumar
Mahsi vs. Union of Indian of India and Another (1994) 5 SCC 704 held follows :-

     "Taking into consideration the muscularly weaker physique of the woman, her
general vulnerable physical and social condition and her defensive and non-
aggressive nature and role particularly in this country, the legislature can
hardly be faulted if the said two grounds are made available to the wife and not
to the husband for seeking dissolution of the marriage. For the same reasons, it
can hardly be said that on that account the provisions of Section 10 of the Act
are discriminatory as against the husband.

     We, therefore, find that there is no substance in the challenge by the
petitioner-husband to the vires of the provisions of Section 10 as being
discriminatory against the husband and, therefore. violative of Article 14 of
the Constitution." So far as the challenge to the Muslim Women (Protection of
Rights on Divorce) Act, 1986 is concerned, we understand that the said issue is
pending before the Constitution Bench. we, therefore, do not see any reason to
multiply proceedings in that behalf.

     In the result and having regard to the earlier decisions of this Court
noticed above, we decline to entertain these writ petitions. Accordingly, these
writ petitions are dismissed.