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Synopsis

On Friday, Advocate Ashwini Kumar Upadhyay, Danish Eqbal, and others "withdrew" their petitions before the Delhi High Court, which sought direction for drafting of a Uniform Civil Code (UCC) by the Law Commission.

A division bench of Acting Chief Justice Manmohan and Justice Mini Pushkarna granted the seven petitioners liberty to approach the Law Commission of India and give their suggestions. "Dismissed, as withdrawn," the court ordered. 

Taking note of the Apex Court's judgment dated March 29, 2023, the bench said that the enactment of law lies exclusively within the domain of the legislature and that a mandamus cannot be issued to the legislature to enact law.

“The Supreme Court order is clear... They (Law Commission of India) don’t need us. It is an authority constituted by the Constitution. They will do it. Let us not interfere with them,” the bench told Upadhyay, after which he withdrew his plea.

On April 25, court asked Advocate Ashwini Kumar Upadhyay to place before it the prayers made by him before the Supreme Court in similar matters.

Advocate M. R. Shamshad, representing an intervenor, informed the bench that on March 29, the Supreme Court refused to entertain petitions by Upadhyay in respect of gender-neutral and religion-neutral laws, observing that these fell within the legislative domain. The counsel also informed the bench that Upadhyay had even withdrawn a plea from the Supreme Court in relation to UCC in 2015.

The Supreme Court order of March 29, 2023, stated:

“On a considered view of the pleadings & submissions, we are not inclined to entertain the petition...the grant of these proceedings would necessitate direction form enactment of a law, a gender-neutral, religion- neutral legislation as the petitioner has described it. Enactment of legislation lies exclusively with the domain of the legislation....mandamus cannot be issued to the legislature......”

"We see no reason to entertain such a request. Since ultimately it is an aid of the enactment of the legislation which falls in the legislation domain".

On perusal of the Supreme Court order, the high court had noted, “It has been brought to the notice of this court that the Supreme Court has passed a common order in 10 cases on March 29, 2023, in which 4 cases were filed by Ashwini Upadhyay in respect of gender neutral and religion neutral legislation”.

“The petitioner (Ashwini Upadhyay) is directed to file the prayer clause of items no.1,3,6 and 8, which finds a place in para 1 of the order passed in WP(C) 869/2020 and prayer clause of WP(C) 819/2015. Four weeks time is granted to do the needful. Accordingly, list on August 3”, the bench had ordered.

"You file those prayers. We will see. It is prima facie not maintainable. We will first see if it is maintainable”, the court had remarked orally.

Notably, in December last year, the court had directed the Ministry of Law and Ministry of Home Affairs to file their respective responses on a plea seeking direction for drafting of a Uniform Civil Code (UCC) by the Law Commission.

One of the pleas stated that uniformity in the age of marriage, grounds of divorce, maintenance and alimony, succession, adoption, etc. is essential for gender equality. The petitioner pressed that implementation of a Uniform Civil Code in the spirit of Article 44 is, in fact, essential for the achievement of these ends.

Moreover, in his plea, Advocate Ashwini Kumar Upadhyay submitted that he examined the last 70 years' reports of the Law Commission, and found that only 15 reports were prepared on the direction of the Centre and other reports were either suo moto or on the direction of the court.

Further, pointing out that polygamy is an offence under Section 494 of IPC, Danish Eqbal, in his plea, said that there are many instances where people convert to seek the pleasure of multiple marriages. "Even though even in Islamic countries like Pakistan and Turkey, consent of the wife is essential," he added.

Eqbal also said that "Muslim parents can marry their teenage daughters because the minimum age of marriage is defined as puberty....although WHO says that pregnancy before 20 years is the root cause of many diseases and is injurious."

On the inequality in the practice of Talaq, Eqbal stated that even though "instant Triple Talaq is now void and unconstitutional but other forms of oral talaq viz. Talaq-e-Hasan and Talaq-e-Ahasan still prevail. Therefore, women are always under pressure and fear."

Regarding the issue of Stree Dhan, Eqbal stated that Muslim women are deprived of the benefits of the same, as in Muslim personal law there is no concept of the same, and "whatever articles she brings with herself during the marriage, is also enjoyed by the husband after divorce".

Making a case for the Uniform Civil Code, Eqbal said that the same will truly ensure gender equality and "control fissiparous tendencies and promote fraternity, unity, and national integration".

Case Title: Ashwini Kumar Upadhyay Vs. Union of India & Anr, Danish Eqbal v UOI and Ors. (a batch of connected matters)