“Indian Society Becoming Homogenous, Traditional Barriers Of Religion Slowly Dissipating”: Delhi HC Bats For Uniform Civil Code
While observing clearly, cogently, categorically and convincingly that the hope expressed under Article 44 of the Constitution should not remain a ‘mere hope’, the Delhi High Court in a latest, learned, laudable and landmark judgment titled Satprakash Meena vs Alka Meena in C.R.P.1/2021 and CM APPL. 332/2021 that was reserved on 3 June and then finally delivered on 7 July, 2021 minced just absolutely no words in putting across the dire need for having a Uniform Civil Code after noting that the Indian society is gradually becoming homogenous while the traditional barriers are slowly disappearing. Justice Pratibha M Singh who delivered this extremely brilliant, bold, balanced and brief judgment observed without mincing any words that, “In modern Indian society which is gradually becoming homogenous, the traditional barriers of religion, community and caste are slowly dissipating. The youth of India belonging to various communities, tribes, castes or religions who solemnize their marriages ought not to be forced to struggle with issues arising due to conflicts in various personal laws, especially in relation to marriage and divorce.” What Justice Pratibha M Singh has pointed out is definitely the crying need of the hour also!
For far too long this most pressing issue of uniform civil code has been hanging fire and out law makers have just preferred to always look the other way round on it. Why is it that film actor Dharmender had to become Muslim to marry a second time? Why is it that the son of Bhajan Lal named Chander Mohan also had to change his name to Chander Mohammed and so also Anuradha Bali had to assume a Muslim name Fizza and convert to Islam just to marry each other as Chander was already married and in Hindu religion one cannot marry than one?
To put it mildly: Why when both Hindu men and Hindu women were barred from marrying more than one even though prior to the framing of the Hindu Marriage Act, 1955, both the Hindu men and Hindu women had the unfettered liberty to marry as many as they liked with Lord Krishna having 16,108 wives as reported in ‘The Times of India’ newspaper in 2018 and we all know how the Hindu kings like Shivaji among others had many wives with chief queen being Sai Bai Nimbalkar were people from other religion not similarly barred as my best friend Sageer Khan often asked me? There was just absolutely no limit and Sageer pointed out that Dr BR Ambedkar himself in his Hindu Code Bill 1951 had favoured the retention of polygamy among Hindus and was to be kept as a ground for divorce yet it was abolished by Nehruji which I feel was essential also to control population but Sageer Khan felt why people of other religion like Muslims of which he too forms a part were not touched with polygamy continuing unabated which definitely caused a lot of heartburn among Hindus due to which many convert to Islam to marry more than one women to which I nodded! It cannot be denied that this conversion menace that is rocking our country in many states especially in last few years as we see for ourselves due to which states are compelled to make laws to stop conversion?
To put it differently: Why is the root cause not addressed ever? What are our lawmakers afraid of? How can such a discriminatory and reprehensible approach be justified by any person believing in “equality”? Why this discriminatory approach has been continuing from 1955 till 2021? Why only Hindu men and women banned completely from marrying more than one but Muslims not touched till now? Why monogamy imposed only on Hindus?
This alone explains why my best friend Sageer Khan had no compunction to say in 1993 that, “Muslims enjoy the maximum liberty in India. We can marry more than one but Hindus cannot marry even if they want as they have been forbidden even though earlier they could marry as many as they wanted even in British India but we have not been forbidden. Why monogamy imposed only on Hindus? What Nehru did was utterly disgraceful?” I however feel that Nehruji didn’t want to hurt Muslims as country was fresh from partition wounds but what about other PM from Lal Bahadur Shastri till Narendra Damodardas Modi? Why can’t the wrong perpetrated since 1955 till now not be rectified as Sageer Khan often asked me?
Needless to say, this alone explains why Justice Pratibha M Singh had just no qualms to further add that, “The hope expressed in Article 44 of the Constitution that the State shall secure for its citizens Uniform Civil Code ought not to remain a mere hope.” While observing that there is a need for implementing the Uniform Civil Code, the Delhi High Court observed thus: “The need for a Uniform Civil Code as envisioned under Article 44 has been reiterated from time to time by the Supreme Court. Cases like the present one repeatedly highlight the need for such a Code – ‘common to all’, which would enable uniform principles being applied in respect of aspects such as marriage, divorce, succession etc., so that settled principles, safeguards and procedures can be laid down and citizens are not made to struggle due to the conflicts and contradictions in various personal laws.” With the aforesaid observations, the Delhi High Court set aside the judgment and directed the trial court to proceed with the adjudication of the petition under 13-1(ia) of the HMA, 1955 on merits and render a decision within six months.
To start with, Justice Pratibha M Singh of Delhi High Court sets the ball rolling by first and foremost putting forth in para 1 that, “The question in this petition is as to the applicability of The Hindu Marriage Act, 1955 (hereinafter referred as the “HMA, 1955”), in respect of the parties who belong to the Meena community in view of the exclusion under Section 2(2) of the HMA, 1955.”
While elaborating on the facts of the case, Justice Pratibha then discloses in para 2 that, “The Petitioner – Mr. Satprakash Meena and the Respondent- Ms. Alka Meena got married on 24th June, 2012. According to the Petitioner, the marriage was solemnized in Jaipur, Rajasthan, as per Hindu rites and customs. Both the parties belong to the Meena community and the same is an admitted position. The Petitioner is an engineer who is working in Delhi and the Respondent is stated to be a house maker. The parties have a minor child namely Master Lakshya, who was born on 12th April, 2013 in Delhi.”
While elaborating further, the Bench then states in para 3 that, “A petition seeking divorce under Section 13-1(ia) of the HMA, 1955was filed by the Petitioner on 2nd December, 2015, before the Principal Judge (West), Family Court, Tis Hazari, Delhi. The Respondent did not appear in the said petition. There is a dispute as to whether the Respondent was served or not. The Respondent, however, preferred a transfer petition being Alka Meena v. Satprakash Meena [Transfer Petition Civil No. 1671/2016] before the Supreme Court. In the said transfer petition, according to the Petitioner, the Respondent took a categorical stand that the marriage was solemnized as per the Hindu rites and customs. Vide order dated 6th April, 2017, the transfer petition was disposed of, however, the Respondent was permitted to avail of the facility to participate in the proceedings through video conferencing.”
To be sure, Justice Pratibha then mentions in para 4 that, “An FIR was lodged by the Respondent under The Protection of Women from Domestic Violence Act, 2005 (hereinafter the “DV Act”) as also an application seeking maintenance, under Section 125 of The Code of Criminal Procedure, 1973(hereinafter the “CrPC”) in the city of Jaipur.”
To put things in perspective, the Bench then points out in para 5 that, “In the divorce petition, since the Respondent did not appear, she was proceeded ex-parte. However, after she was permitted to participate in the proceedings through video conferencing by the Supreme Court (in the transfer petition), she filed an application under Order VII Rule 10 and Order VII Rule 11 of The Code of Civil Procedure, 1908 (hereinafter “the CPC”) before the Family Court. In the said application she prayed for rejection of the divorce petition, on the ground that the provisions of the HMA, 1955 do not apply to the parties concerned as they are members of a notified Scheduled Tribe in Rajasthan, and hence the HMA, 1955 would not be applicable to the case of the said parties in view of Section 2(2) of the HMA, 1955.”
As it turned out, Justice Pratibha then reveals in para 6 that, “The said application was decided by the Family Court and the divorce petition was dismissed by holding that the provisions of the HMA, 1955 do not extend to the Meena community, which is a notified Scheduled Tribe. The said order dated 28th November, 2020 is under challenge in the present petition.”
Furthermore, Justice Pratibha then mentions in para 23 that, “The parties in this petition, both belong to the Meena Community. It is the case of the wife that the Meena community is covered by the exclusion under Section 2(2) of the HMA which reads:
“(2) Notwithstanding anything contained in subsection (1), nothing contained in this Act shall apply to the members of any Scheduled tribe within the meaning of clause (25) of article 366 of the Constitution unless the Central Government, by notification in the Official Gazette, otherwise directs.””
What’s more, the Bench then observes in para 24 that, “The divorce petition under Section 13-1(ia) of the HMA was dismissed by the trial court on the basis of the exclusion in Section 2(2) of the HMA, 1955. The trial court had not conducted the trial in the petition or considered the evidence in the matter, but summarily dismissed the petition simply on the ground that since the parties belong to the Meena Community, the provisions of the HMA, 1955 would not be applicable. The relevant extracts of the trial court judgment read as under:-
“7. Hence, by Sub-Section 2 of Section 2 of HMA, Hindu Marriage Act is not applicable to the members of Scheduled tribe within the meaning of Clause 25 of Article 366 of the Constitution, unless the Central Government by notification in the official Gazette otherwise directs. No such notification is put forth or pleaded before the court by any of the sides.
8. Hence, by virtue of Section 2 of sub-section (2) of HMA, the present petition filed by the petitioner seeking decree of dissolution of marriage under HMA is not maintainable being barred by Section 2(2) of HMA itself. XXX
12. Accordingly, in view of the above discussion and in the light of the above mentioned pronunciations of law, the present petition filed by the petitioner / non-applicant-husband u/s.13(1)(ia) of HMA 1955 as amended by the marriage laws (Amendment Act, 1976) is dismissed being not maintainable in view of the provisions of Section 2(2) of Hindu Marriage Act. The petition is dismissed. File be consigned to Record Room”.”
To clear the air, the Bench then also mentions in para 25 that, “The submissions made on behalf of the parties reveal that there are two judgments of the Supreme Court that are relied upon. The husband i.e. the Petitioner who has preferred the divorce petition relies upon Labishwar Manjhi (supra) whereas the Respondent- wife relies upon the judgment of the Supreme Court in Dr. Surajmani Stella Kujur (supra).”
Simply put, Justice Pratibha then makes it clear in para 37 that, “A perusal of the various decisions discussed above shows that there is divergence in the views being taken by various High Court. The two decisions which are to be considered by this Court are the decisions of the Supreme Court in Labishwar Manjhi (supra) and Dr. Surajmani Stella Kujur (supra).
Quite significantly, the Bench then enunciates in para 47 that, “The word ‘Hindu’ is not defined in any of the statutes. It is in view of the fact that there is no definition of Hindu, that the Supreme Court has held in Labishwar Manjhi (supra) that if members of Tribes are Hinduised, the provisions of the HMA, 1955 would be applicable. The manner in which the marriage has been conducted in the present case and the customs being followed by the parties show that as in the case of Hindus, the marriage is conducted in front of the fire. The Hindu customary marriage involves the ceremony of Saptapadi which has also been performed in the present case. The various other ceremonies, as is clear from the marriage invitation are also as per Hindu customs. If members of a tribe voluntarily choose to follow Hindu customs, traditions and rites they cannot be kept out of the purview of the provisions of the HMA, 1955. Codified statutes and laws provide for various protections to parties against any unregulated practices from being adopted. In this day and age, relegating parties to customary Courts when they themselves admit that they are following Hindu customs and traditions would be antithetical to the purpose behind enacting a statute like the HMA, 1955. The provisions of exclusion for example under Section 2(2) are meant to protect customary practices of recognised Tribes. However, if parties follow Hindu customs and rites, for the purpose of marriage, this Court is inclined to follow the judgment of the Supreme Court in Labishwar Manjhi (supra) to hold that the parties are Hinduised and hence the HMA, 1955 would be applicable. Moreover, nothing has been placed before the Court to show that the Meena community Tribe has a specialised Court with proper procedures to deal with these issues. In these facts, if the Court has to choose between relegating parties to customary Courts which may or may not provide for proper procedures and safeguards as against codified statutes envisioning adequate safeguards and procedures, this Court is inclined to lean in favour of an interpretation in favour of the latter, especially in view of the binding precedent of the Supreme Court in Labishwar Manjhi (supra) which considered an identical exclusion under the HSA,1956.”
Going ahead, the Bench then mentions in para 48 that, “In so far as the judgment in Dr. Surajmani Stella Kujur (supra) is concerned, the said decision dealt with an offence of bigamy which was pleaded to be contrary to the customs in the Santhal Tribe. The said custom had not been established on record and hence the Court held that since the custom was not established by the parties, an offence could not be created by a mere pleading of a custom. Moreover, even in Dr. Surajmani Stella Kujur (supra), the Supreme Court clearly holds that for determination of civil rights, customs may be proved and can form the basis. Thus, insofar as divorce proceedings are concerned, if proper tribal customs are not established or the following of Hindu customs or rites is admitted by the parties, there is no reason to hold that the provisions of the HMA, 1955 would not apply.”
While pooh-poohing the trial court judgment, Justice Pratibha then lamented in para 49 that, “Unfortunately, the trial court has failed to consider the admissions made by the Respondent wife which have been set out hereinabove leading to the incorrect conclusion. The trial court also failed to consider the decision of the Supreme Court in Labishwar Manjhi (supra).”
While citing the relevant case laws pertaining to common civil code, Justice Pratibha then remarks in para 50 that, “Courts have been repeatedly confronted with the conflicts that arise in personal laws. Persons belonging to various communities, castes and religions, who forge marital bonds, struggle with such conflicts. It is with the hope of bringing uniformity and to eliminate these struggles and conflicts, that the Supreme Court way back in 1985, in Mohd. Ahmed Khan v. Shah Bano Begum and Ors, (1985) 2 SCC 556 observed:
“32. It is also a matter of regret that Article 44 of our Constitution has remained a dead letter. It provides that “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India”. There is no evidence of any official activity for framing a common civil code for the country. A belief seems to have gained ground that it is for the Muslim community to take a lead in the matter of reforms of their personal law. A common Civil Code will help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies. No community is likely to bell the cat by making gratuitous concessions on this issue. It is the State which is charged with the duty of securing a uniform civil code for the citizens of the country and, unquestionably, it has the legislative competence to do so. A counsel in the case whispered, somewhat audibly, that legislative competence is one thing, the political courage to use that competence is quite another. We understand the difficulties involved in bringing persons of different faiths and persuasions on a common platform. But, a beginning has to be made if the Constitution is to have any meaning. Inevitably, the role of the reformer has to be assumed by the courts because, it is beyond the endurance of sensitive minds to allow injustice to be suffered when it is so palpable. But piecemeal attempts of courts to bridge the gap between personal laws cannot take the place of a common Civil Code. Justice to all is a far more satisfactory way of dispensing justice than justice from case to case.””
On similar lines, the Bench then enunciates in para 51 that, “Again in Ms Jordon Diengdeh v. S.S. Chopra, (1985) 3 SCC 62, the Supreme Court observed in the context of dissolution of marriage between a couple wherein the wife belong to the Naga Tribe and the husband was a Sikh by religion that Article 44 of the Constitution needs to be implemented in its letter and spirit. The Supreme Court notices the various provisions under the personal laws applicable to marriages under the Hindu Marriage Act, Special Marriage Act, Parsi Marriage and Divorce Act, Muslim Law etc. The Court then concluded and observed as under:-
“7. It is thus seen that the law relating to judicial separation, divorce and nullity of marriage is far, far from uniform. Surely the time has now come for a complete reform of the law of marriage and make a uniform law applicable to all people irrespective of religion or caste. It appears to be necessary to introduce irretrievable breakdown of marriage and mutual consent as grounds of divorce in all cases. The case before us is an illustration of a case where the parties are bound together by a marital tie which is better untied. There is no point or purpose to be served by the continuance of a marriage which has so completely and signally broken down. We suggest that the time has come for the intervention of the legislature in these matters to provide for a uniform code of marriage and divorce and to provide by law for a way out of the unhappy situations in which couples like the present have found themselves in. We direct that a copy of this order may be forwarded to the Ministry of Law and Justice for such action as they may deem fit to take. In the meanwhile, let notice go to the respondents.””
Of particular significance is with what the Bench then states in para 52 that, “The decisions in Shah Bano (supra) and Ms Jordon Diengdeh (supra) were rendered way back in 1985 and more than 35 years have been passed. The Supreme Court had expressed hope and observed that the time has come for enacting a uniform code of marriage and divorce and urged for a ‘complete reform’. These very sentiments have been again reiterated in Sarla Mudgal Vs. UOI AIR 1995 SC 1531 and Lily Thomas (2000) 6 SCC 224.”
While continuing in a similar vein, Justice Pratibha then elucidates in para 53 stating that, “In John Vallamattom and Another v. Union of India, (2003) 6 SCC 611, the Supreme Court considered Sarla Mudgal (supra) and further observed:
“44. Before I part with the case, I would like to state that Article 44 provides that the State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India. The aforesaid provision is based on the premise that there is no necessary connection between religious and personal law in a civilized society. Article 25 of the Constitution confers freedom of conscience and free profession, practice and propagation of religion. The aforesaid two provisions viz. Articles 25 and 44 show that the former guarantees religious freedom whereas the latter divests religion from social relations and personal law. It is no matter of doubt that marriage, succession and the like matters of a secular character cannot be brought within the guarantee enshrined under Articles 25 and 26 of the Constitution. Any legislation which brings succession and the like matters of secular character within the ambit of Articles 25 and 26 is a suspect legislation, although it is doubtful whether the American doctrine of suspect legislation is followed in this country. In Sarla Mudgal v. Union of India [(1995) 3 SCC 635: 1995 SCC (Cri) 569] it was held that marriage, succession and like matters of secular character cannot be brought within the guarantee enshrined under Articles 25 and 26 of the Constitution. It is a matter of regret that Article 44 of the Constitution has not been given effect to. Parliament is still to step in for framing a common civil code in the country. A common civil code will help the cause of national integration by removing the contradictions based on ideologies.””
Adding more to it, the Bench then points out in para 54 that, “The need for a Uniform Code has been again echoed by the Supreme Court in ABC v. State (NCT of Delhi) (2015) 10 SCC 1, wherein it was held: “20. It is imperative that the rights of the mother must also be given due consideration. As Ms Malhotra, learned Senior Counsel for the appellant, has eloquently argued, the appellant’s fundamental right of privacy would be violated if she is forced to disclose the name and particulars of the father of her child. Any responsible man would keep track of his offspring and be concerned for the welfare of the child he has brought into the world; this does not appear to be so in the present case, on a perusal of the pleading as they presently portray. Furthermore, Christian unwed mothers in India are disadvantaged when compared to their Hindu counterparts, who are the natural guardians of their illegitimate children by virtue of their maternity alone, without the requirement of any notice to the putative fathers. It would be apposite for us to underscore that our directive principles envision the existence of a Uniform Civil Code, but this remains an unaddressed constitutional expectation.”
While referring to a recent case law, Justice Pratibha then remarkably points out in para 55 that, “Recently, in Jose Paulo Coutinho v. Maria Luiza Valentina Pereira and Another, (2019) 20 SCC 85, the Supreme Court observed:
“..24. It is interesting to note that whereas the Founders of the Constitution in Article 44 in Part IV dealing with the Directive Principles of State Policy had hoped and expected that the State shall endeavour to secure for the citizens a Uniform Civil Code throughout the territories of India, till date no action has been taken in this regard. Though Hindu laws were codified in the year 1956, there has been no attempt to frame a Uniform Civil Code applicable to all citizens of the country despite exhortations of this Court in Mohd. Ahmed Khan v. Shah Bano Begum [Mohd. Ahmed Khan v. Shah Bano Begum, (1985) 2 SCC 556 : 1985 SCC (Cri) 245] and Sarla Mudgal v. Union of India [Sarla Mudgal v. Union of India, (1995) 3 SCC 635 : 1995 SCC (Cri) 569] .”
To top it all, what came as a icing on the cake is that Justice Pratibha then most brilliantly seeks to point out in para 56 that, “The backdrop of all the above decisions and the crux of Art. 44 of the Constitution is well captured in the Constituent Assembly Debates. Dr. B.R. Ambedkar while debating on Article 35 (now Article 44 of the Constitution of India) [Constituent Assembly Debates, Volume 7, 23rd November 1948] said: “My friend, Mr. Hussain Imam, in rising to support the amendments, asked whether it was possible and desirable to have a uniform Code of laws for a country so vast as this is. Now I must confess that I was very much surprised at that statement, for the simple reason that we have in this country a uniform code of laws covering almost every aspect of human relationship. We have a uniform and complete Criminal Code operating throughout the country, which is contained in the Penal Code and the Criminal Procedure Code. We have the Law of Transfer of Property, which deals with property relations and which is operative throughout the country. Then there are the Negotiable Instruments Acts: and I can cite innumerable enactments which would prove that this country has practically a Civil Code, uniform in its content and applicable to the whole of the country. The only province the Civil Law has not been able to invade so far is Marriage and Succession. It is this little corner which we have not been able to invade so far and it is the intention of those who desire to have article 35 as part of the Constitution to bring about that change. Therefore, the argument whether we should attempt such a thing seems to me somewhat misplaced for the simple reason that we have, as a matter of fact, covered the whole lot of the field which is covered by a uniform Civil Code in this country. It is therefore too late now to ask the question whether we could do it. As I say, we have already done it.””
Having said this, Justice Pratibha then further goes on to add for herself in para 57 that, “The need for a Uniform Civil Code as envisioned under Article 44, has been reiterated from time to time by the Supreme Court. Cases like the present one repeatedly highlight the need for such a Code – ‘common to all’, which would enable uniform principles being applied in respect of aspects such as marriage, divorce, succession etc., so that settled principles, safeguards and procedures can be laid down and citizens are not made to struggle due to the conflicts and contradictions in various personal laws. In modern Indian society which is gradually becoming homogenous, the traditional barriers of religion, community and caste are slowly dissipating. The youth of India belonging to various communities, tribes, castes or religions who solemnise their marriages ought not to be forced to struggle with issues arising due to conflicts in various personal laws, especially in relation to marriage and divorce. The hope expressed in Article 44 of the Constitution that the State shall secure for its citizens Uniform Civil Code ought not to remain a mere hope. The Supreme Court had, in 1985 directed that the judgment in Ms. Jordon Diengdeh (supra) to be placed before the Ministry of Law to take appropriate steps. However, more than three decades have passed since then and it is unclear as to what steps have been taken in this regard till date. Accordingly, let the copy of the present judgment be communicated to the Secretary, Ministry of Law & Justice, Government of India, for necessary action as deemed appropriate.”
Finally, Justice Partibha then concludes by holding in para 58 that, “The appeal is allowed. The impugned judgment is not sustainable and is accordingly set aside. Trial court is directed to proceed with the adjudication of the petition under 13-1(ia) of the HMA, 1955 on merits and render a decision within six months.”
In summary, this extraordinary brilliant, bold and balanced judgment by a Single Judge Bench of Justice Pratibha M Singh of Delhi High Court is a gentle rap in the knuckle on our law makers who just don’t want to act on this since last 74 years which is a pretty long time! Justice Pratibha has batted very strongly, suavely and successfully for ushering in uniform civil code in our country which we have to acknowledge now! I am certainly sure as my best friend Sageer Khan had said to me way back in 1993 that if monogamy is imposed equally on all there is no reason why Hindu men will be lured to convert to Islam and become Muslim!
But what a tragedy that our law makers led by PM Narendra Damodardas Modi just like former Prime Ministers never want to do anything on this till now as we have seen also for ourselves since last 7 years of his assuming office which is a real tragedy! My best friend Sageer was deadly against conversion and it was none other than Sageer Khan and not some BJP or RSS or VHP or Bajrang Dal leader who took a vow from me also in 1994 that never in my life shall I convert under any lure of marrying more than one women or any other lure or any other ground whatsoever nor shall I ever enter mosque or bow my head in front of mosque and he said quite frankly that, “Most importantly, all religions are just different paths and the goal is common God whom we call by different names and conversion is the worst sin which we should never commit under any circumstances! Just like I will never convert I will never like you my best friend also to ever convert or turn away from the Lord Shiva whom you have been worshipping till now! It is for revival of your faith in God that I always accompany you to temple and you shall always worship Lord Shiva till your last breath just like I worship Allah”. It thus merits no reiteration that law must be equal and same for all and at a time when population explosion is rocking our country and is root cause of many problems like unemployment, hunger etc then why should polygamy be allowed to anyone under any circumstances? Of course, polygamy must be banned for one and all and uniform civil code must be implemented on one and all with no exceptions whatsoever! This is exactly the sum and substance also of this extraordinary notable judgment by Justice Pratibha M Singh of Delhi High Court!