Decisions of Hon’ble Supreme Court leading (and not leading) to changes in various laws

It is the judiciary’s task to interpret, apply & ultimately uphold constitutional values and to ensure justice for all. Time and again, our apex Court pronounces landmark judgments that have far-reaching consequences, mostly progressive, on the society. Their impact echoes loud and clear, often even altering provisions of the Constitution itself. Although our legal system was originally based on the broad principles of the English common law, over the years it has been adapted to Indian traditions and been changed, for the better, by certain landmark verdicts of the Supreme Court.Discussed in this article are certain pronouncements by our apex court which have led to various legislative changes. But sometimes the Hon’ble Supreme Court has put the onus on the Parliament to do so through the requisite legislative process.

Triple Talak verdict

Earlier if the Muslim husband gaveTalak to his wife, the Muslim wife applied for her maintenance in the Court as per Section 125 of CrPC. The Hon’ble Supreme Court had in 1985 pronounced that the section 125 CrPC is applicable to Muslim families also (AIR 1985 SC 945). Bowing to the protests and demand from the Muslim clerics, the then Central Government passed a separate Law “the Muslim Women (Protection of Rights on Divorce) Act, 1986” in 1987.

All communities expect the Muslim community have similar Acts for males and females. But in Muslim Laws, a male can marry four females, but a female cannot marry more male than one. Also, a Muslim husband until 2016 could divorce any of his wives by pronouncing Triple Talak; but this fact was challenged in the Hon’ble Supreme Court. The Central Government and many other stakeholders were parties in the Hon’ble Supreme Court. A 5-judge bench of Supreme Court barred the controversial Triple Talaq practice, asking the Centre to bring legislation. The apex court put a six-month stay on the practice, directing Parliament to enact a law within the given time period. After reading separate judgments, the bench ruled in 3:2 majority that Triple Talaq was void and illegal and ‘unconstitutional’. SC referred to the abolition of Triple Talalq in Islamic countries and asked why couldn’t India get rid of it.

Over three months after the Supreme Court “set aside” the practice of instant triple talaq or talaq-e-biddat, the Centre has drawn up a draft law which makes it a “cognizable and non-bailable” offense, punishable with three years jail and a monetary fine. The draft law — Muslim Women (Protection of Rights on Marriage) Act — also allows a woman who has been given instant triple talaq to move court, seeking “subsistence allowance” for herself and dependent children, as well as custody of minor children. A Bill to this effect is likely to be tabled in the winter session of Parliament.

Uniform Civil Code

Article 44 of the Constitution of India states that “the state shall endeavor to secure for the citizens a Uniform Civil Code throughout the territory of India”. Dr. Tahir Mahmood in his book, “Muslim Personal Law”(1977 Edition pages 200-202) has made a powerful plea for framing a Uniform Civil Code for all citizens of India. The author strongly advocates for the same. In a secular country like ours, there should not be separate Civil Procedure Code or Criminal Procedure Code for different faiths or communities. I had written an Article titled: “Crying need of day- Uniform Common Civil Code” which was published in the Souvenir of All Orissa Lawyers Association.

Advocate Farah Faiz, has filed a Public Interest Litigation (PIL) seeking the Centre to enact the Uniform Civil Code (UCC) to bring all communities on the common platform in the light of diverse personal laws in different religions. Filing the PIL, Filing the PIL, the petitioner lawyer said the Uniform Civil Code is the urgent need of the day “to abolish the discrimination among citizens on the basis of region and to end the vote bank politics.” The recent issue over the practice of triple talaq has sparked debate as to whether the age-old practice should be there or not?

The Supreme Court, however, declined to wade into the community-sensitive debate over the desirability of bringing in a Uniform Civil Code as envisaged in Article 44 of the Constitution, informing the PIL petitioner that the initiative rested with Parliament and not the judiciary.

The strength of India lies in its diversity, and in the harmonious existence of all communities. All communities and minorities including the Scheduled Tribes, Schedule Castes, Virashariva, Lingayat, BrahmonPrarathana, Arya Samaj, Buddhist, Jaina, Sikhs, Muslims, Christians, Parsis are living in this great land and owe allegiance to the Indian Constitution.Uniform Civil code should, thus, be applicable to all the communities. Now the Central Government should enact laws as per various decisions of the Hon’ble Supreme Court.

Adultery

The recent discussions on the need for a Uniform Civil Code in India and to scrap the triple talaq system amongst Muslims have generated much heat. The government says that it is serious about gender discrimination.

This makes me think that the time is ripe to attract the attention of the nation on another plainly discriminatory law, one that cuts gender discrimination both ways. Let me explain. We are talking about the law on adultery in India.

Section 497 of IPC, 1860 states that, “Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years or with fine or with both. In such case, the wife shall not be punishable as an abettor.”

Section 198 of the Code of Criminal Procedure, 1973, says only the husband of the married woman, who had sexual intercourse with another man, could file a case against the male who indulged in the act with her. The above two sections deal with the criminal offense of adultery.

The implications of this law are that if a married woman has sexual intercourse with multiple men, all those men are liable to criminal charges being filed by the husband, except the woman herself. On the other hand, if the husband sleeps with several married or unmarried women, the wife cannot file a case against anybody on the ground of adultery. One wonders what, if any, is the basis for this discrimination amongst husbands and wives?

The law on adultery was challenged before the courts and this is what the courts had to say: In Yusuf Abdul Aziz v. The State Of Bombay (1954 AIR 321), the appellant, who was being sued for adultery, filed a case in the High Court at Bombay, to determine the constitutional inconsistency between Article 14 of the Indian Constitution (Right to Equality) and Section 497 of IPC.

He lost the case and, therefore, approached the Supreme Court in appeal. The Supreme Court was of the view that Section 497 is protected by Article 15(3), as it was made for the protection and uplift of women in the society.

An argument was made about the difference in the uplift of women and a license to commit and abet a crime, but the court responded by saying that they were unable to read such restrictions in the clause.

In Soumithri Vishnu v. Union of India (1985 AIR 1618), it was contended that in contrary to Article 14 of the Constitution, which provides for equality before the law and equal protection of the law, Section 497 of IPC creates an irrational classification between men and women. The apex court held that “such arguments go to the policy of the law, not to its constitutionality unless while implementing the policy, any provision of the Constitution is infringed”. The court further held:

“The legislature is entitled to deal with the evil where it is felt and seen most. A man seducing the wife of another. Mrs. Chidambaram says that women, both married and unmarried, have changed their lifestyle over the years and there are cases where they have wrecked the peace and happiness of other matrimonial homes. We hope this is not too right but, an under-inclusive definition is not necessarily discriminatory. The alleged transformation in feminine attitudes, for good or bad, may justly engage the attention of the law-makers when the reform of penal law is undertaken. They may enlarge the definition of adultery to keep pace with the moving times. But, until then, the law must remain as it is.” [Emphasis supplied].

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Mr. Satya Narayan Seth is an illustrious lawyer, jurist and social worker of Odisha. He held the immediate past Chair of Child Welfare Committee, Kalahandi, a quasi-judicial body instituted by the government. Twice elected unanimously as the President of Kalahandi district Bar Association, and a best-selling author of several law books, he is widely regarded as one of the finest lawyers of the state.

Satya Narayan Seth, Advocate, Gamdhi Chowk, Bhawanipatna

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