Ahmedabad Women’s Action Group Vs. Union of India

CASE BRIEF

Petitioner: Ahmedabad Women Action Group (AWAG) & ORS

Respondent: Union of India

Date of Judgement: 24/02/1997

Citation: (AIR 1997, 3 SCC 573)

Bench / Coram: CJI Aziz Mushabber Ahmadi Sujata V. Manohar, K.Venkataswami JJ.

Writ Petition No: (Civil) No. 196 of 1996

(Civil) No. 494 of 1996

(Civil) No.721 of 1996

Statutes Referred:

1. National Legislation
2. The Constitution of India (the Constitution)
3. Sharia Law
4. The Hindu Succession Act
5. The Hindu Marriage Act
6. The Hindu Bigamous Marriage Act
7. The Hindu Divorce Act
8. The Hindu Minority and Guardianship Act
9. The Guardians and Wards Act
10. The Muslim Women (Protection of Rights on Divorce Act 1986)

Case Referred:

1 Maharishi Avadhesh vs. Union of India (1994 (supp) I SCC /18).

2 Reynold Raiamani and Another vs. Union of India (1982) 2 SCC 474

3 Pannalal Bansilal and others vs. State of A.P and Another (990 (2) SCC 498)

4 State of Bombay vs. Narasu Appa Mali (AIR 1952 Bombay 84)

5 Krishna singh vs. Mathura Ahir and Others (AIR 1980 SC 707)

6 Madhu Kishwar & Others vs. State of Bihar & Others (1996 (5) SCC 125).

7 Anil Kumar Mahsi vs. Union of Indian of India and Another (1994) 5 SCC 704

Facts:

Three writ petitions were filed before the Supreme Court by Ahmedabad Women’s Action Group (AWAG), all filed as a Public Interest litigation. The petitioners’ relief prayed includes to challenge several aspects of Law:

In W.P. (C) No. 494/96 relief prayed are:

1. To declare the existence of polygamy as void as offending Articles 14 and 15 of the constitution.
2. To declare void the existence of Unilateral Talaq
3. To declare polygamy as an act of cruelty vis-à-vis sec.2 of Dissolution of Muslim Marriages Act
4. To declare The Women (Protection of Rights on Divorce Act 1986) void under the constitution of India
5. To declare the provision of Shia and Sunni laws of Inheritance void as discriminating against females only on the ground of sex.

In W.P. (C) No. 196/96 relief prayed are:

1. For repeal of s. (2) of the Hindu Marriage Act 1955.
2. For repeal of s.3 (2), 6 and 9 of Hindu minority and Guardian ship act.
3. To declare s. 6 of Guardians and wards Act void.
4. The Court to declare void the discretion allowed to a Hindu spouse to make testamentary disposition without providing for a spouse and dependents

In W.P (C) No. 721/96.

The prayer sought in the third petition was to declare Sections 10 and 34 of Indian Divorce Act void and also to declare Sections 43 to 48 of Indian Succession Act void.

Issues:

1. Whether it is necessary that the legislature should make law uniformly applicable to all religions?
2. Whether the Court should interfere in the matters of unification of Personal Laws or not?

Ratio decidendi:

1. Neither the Hindu Succession Act, nor even the Shariat law is applicable to the custom-governed tribal.
2. Section 494, Penal code Which makes bigamy an offence applies to Parsis, Christians and others, but not to Muslims because of their respective religious texts which embody their own
3. Distinctive backgrounds.

Obiter Dicta:

Gajendragadkar j. In a case Referred expressed his opinion and agree with the learned Chief Justice in holding that the personal laws do not fail within Article 13(i) at all.

Judgement:

“The Court at the very outset commented that these Writ Petitions do not deserve disposal on merits inasmuch as the arguments advanced before it wholly involves issues of State policies with which the Court will not ordinarily have any concern. Further, Court found 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.”

The court felts that a uniform law, though is might desirable, 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 or 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 v. Narasu Appa Mali AIR 1952 Bom 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 the 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 book in order to advance the welfare of the State”

Gajendragadkar J., also in his concurrent judgment expressed the opinion on the question whether Part III of the Constitution applies to personal laws. The learned Judge observed as follow:

“The Constitution of India itself recognizes 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 and yet the expression “personal law” is not used in Article 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 fall within Article 13(j) at all.”

(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 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 visualize 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”

Conclusion

Finally the Court felt that having regard to earlier decisions, the petitions could not be entertained and were therefore dismissed.