The Supreme Court on Tuesday advocated the enactment of a Uniform Civil Code in the country, while hearing a petition challenging an alleged violation of women's rights under Muslim personal law.
A Bench of Chief Justice of India (CJI) Surya Kant, Justice Joymalya Bagchi and Justice R Mahadevan, called upon the legislature to work for it to avoid the complexities arising due to personal laws.
"To declare personal laws void and create a vacuum... It is best to defer it to legislative wisdom so that the legislature brings about a law on uniform civil code. This court has already recommended uniform civil code. See, for a Muslim man, he can divorce unilaterally, by any procedure you follow. Can we declare all bigamous relations founded on personal law as invalid? No. So we have to defer to legislative power to bring fundamental duties, in effect," Justice Bagchi said. CJI Kant agreed with Justice Bagchi's view. "The answer, as correctly said, is the Uniform Civil Code," the CJI said.
Earlier during the hearing, the court also questioned the petitioners about their plea against the Muslim Personal Law (Shariat) Application Act, 1937. The petitioners have argued that provisions of this law discriminate against Muslim women, including in matters of succession. The court, however, orally observed that if a directive was given to repeal the law, a legislative gap would follow. "You are challenging 1937 Act, then what will apply? What about the vacuum?" the CJI asked.
Advocate Prashant Bhushan, appearing for the petitioners, responded that the Shariah law says women are entitled to half of what men are. He added that the Indian Succession Act will govern the field if the 1937 Act is declared unconstitutional. However, Justice Bagchi questioned the argument.
"If the 1937 Act is not there, will Muslim succession not be governed by personal law as under Article 372?" he said. CJI Kant also indicated that it is better to avoid hasty judicial interventions that could affect the rights of Muslim women. "In our over-anxiety for reforms, we may end up depriving them (Muslim women) or getting less than what they are already getting. If it goes away (the 1937 Act), then what, is the question," the CJI said.
Bhushan suggested that the Court could declare that the Indian Succession Act would govern instead. The said law grants equal rights to men and women in matters of succession, he pointed out. "Inheritance is a civil rights and it is not an essential religious practice. This does not have Article 25 protection," Bhushan added.
He further argued that there cannot be a situation in the country under which a Muslim woman does not have equal rights as that of a Muslim man. However, the court opined that the situation warranted a legislative intervention, and suggested that the petitioners amend their plea.
"Why don't you amend the plea and think of some alternatives and so that more credence can be given? The question is, eventually, what we want to happen is (if there is) a part of Indian women (who) are being deprived of their rights, the idea is to restore those rights," CJI Kant said.
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