Application filed in Supreme Court challenging PIL seeking uniformity in personal laws

An application has been filed in Supreme Court, opposing the PIL filed by BJP leader and Supreme Court advocate Ashwini Kumar Upadhyay for uniformity in personal laws regulating divorce, maintenance and alimony for citizens of India.

The application has been filed by Amina Sherwani through Advocate Fuzail Ahmad Ayyubi and drawn by advocate Rashmi Singh.

The applicant alleged that PIL is a deliberate attempt to interfere with the cultural and customary practices and usages that enjoy the protection of Articles 25 and 26 of the Constitution of India. The divorce issue raised in the PIL transcends into the domain of cultural and customary rights that are intertwined with the right to freely profess and practice religion.

It is submitted that Muslim marriage is contractual in nature and as such the parties to it are allowed to impose conditions for regulating their matrimonial relations. Such conditions can be imposed before the marriage or at the time of the marriage or even after the marriage. The agreement has to be legal and as per the provisions of Muslim law. The option to impose matrimonial conditions under Muslim law provides protection to Muslim women and safeguards their interests in the face of uncertainties of marital life.

Additionally, such marital conditions provide adequate sustenance to Muslim women after the dissolution of marriage as well as during the marriage, submitted the applicant.

The applicant further stated that the resolution of matrimonial disputes through mediation is provided for under Islamic matrimonial jurisprudence. It is submitted that such dispute settlement protects the parties from protracted adversarial litigation which entails immense hardship and humiliation to women in particular.

It was highlighted in the petition, “The Mehr is considered to be a symbol of respect to the wife and as such it is meant to be substantial. A meagre amount is wrong under Islamic principles. Further, if Mehr dues are not paid at the time of divorce, the wife is entitled to retain possession of her husband’s property. In case of refusal by the husband to pay the Mehr, the wife is entitled to live separately and during this period she is entitled to claim maintenance from her husband.”

The applicant laid emphasis on the observation made by Privy Council in the case of Moonshee Buzloor Ruheem v. Shamsoonisa Begum [(1867) 11 MIA 551] with regard to the right of Muslim women upon marriage. The Privy Council observed as follows: “Distinction must be drawn between the rights of a Mahmmodan and a Hindu woman and in all that concerns her power over her property, the former is, by law, far more independent, in fact even more independent than an English woman. There is no doubt that a Mussulman woman when married retains her dominion over her own property and is free from the control of her husband in its disposition.”

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Last year, Supreme Court advocate Ashwini Kumar Upadhyay has filed a PIL in the top court stating that Hindus, Buddhists, Sikhs and Jains have to seek divorce under the Hindu Marriage Act 1955, while Muslims, Christians & Parsis have their own personal laws. Couples belonging to different religions have to seek divorce under the Special Marriage Act, 1956. If either partner is a foreign national then the Foreign Marriage Act 1969 applies. Hence, grounds of divorce are neither gender-neutral nor religion-neutral and are under Article 14, 15 and 44 of the Indian Constitution.
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