New Delhi: In its recent order the Supreme Court Bench said “There is no safeguard against arbitrary divorce and second marriage by her husband during currency of the first marriage, resulting in denial of dignity and security to her.
Referring to the earlier Shah Bano judgment, the Bench said the Constitution Bench had not dealt with the issue properly by way of state policy despite earlier court rulings urging the government to rationalize personal laws of different and bring in the uniform civil code.
The bench said the Muslim Women (Protection of Rights on Divorce) Act, 1986 enacted by then Rajiv Gandhi government needs to be re-visited by a Constitution bench. It has asked the Chief Justice of India H L Dattu to constitute an “appropriate bench” to deal with the two issues, viz polygamy and divorce while converting into a PIL, certain arguments on gender discrimination raised by counsel in a property dispute between two Hindu families Prakash and Phulwati of Karnataka.
It may be recalled that attempts were made to extend equal protection of law to divorced Muslim women through the Shah Bano ruling which allowed a divorced Muslim woman a right to maintenance from her husband under Section 125 Cr.P.C until she may remarries. Parliament had later passed a law overturning the ruling, restricting such maintenance to the iddat period and left any subsequent relief to the mercy of the Wakf Board.
A few days ago a Bench headed by Justice Vikramjit Sen, while dealing with a petition which had challenged a two-year waiting period in Christian law for getting divorce by mutual consent instead of the one-year wait mandated by laws of other religions, had sought Centre’s response on formulating a uniform civil code.
Justice Dave bench said “the issues surrounding inequality faced by Muslim women had come up time and again in different rulings, but was yet to be comprehensively dealt with. One of the reasons for the constitution bench not going into the issue were several rulings which mandated successive governments to enact a uniform civil code.
The courts instead ruled that right to life guaranteed to a Muslim woman included the right to live with dignity. The court had also earlier ruled against polygamy and sati adding that laws dealing with marriage and succession were not part of religion and that laws had to change with time.” The court asked the AG to respond to the notices by November 23.
