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Constitution of India-Articles 13, 14, 15 and 32-Scope of-Power of the Court-Legislative policy relating to personal laws-Interference by courts- Extent of-Personal Laws. Three writ petitions were filed by different organisations under Article 32 of the Constitution of India as public interest litigation. The Ahmedabad Women Action Group prayed for the following reliefs in its writ petition :- (a) to declare Muslim Personal Law which allows polygamy as void offending Articles 14 and 15 of the Constitution; (b) to describe Muslim Personal Law which enables a Muslim male to give unilateral Talaq to his wife without her consent and without resort to judicial process of courts, as void, offending Articles 13, 14 and 15 of the Constitution. (c) to declare that the mere fact that a Muslim husband takes more than one wife is an act of cruelty within the meaning of Clause YIII (f) of Section 2 of Dissolution of Muslim Marriage Act, 1939. (d) to declare that Muslim Women (Protection of Rights on Divorce) Act, 1986 is void infringing Articles 14 and 15. (e) to further declare that the provisions of Sunni and Shia laws of inheritance which discriminate against females in their share as compared to the share of males of the same status, void as discriminating against females only on the ground of sex. In the writ petition filed by Lok Sewak Sangh, the following reliefs were prayed for- (a) to declare Sections 2(2), 5(ii) & (iii), 6 and Explanation to Section 30 of Hindu Succession Act, 1956, as void offending Articles 14 and 15 read with Article 13 of the Constitution of India; (b) to declare Section (2) of Hindu Marriage Act, 1955, as void offending Articles 14 and 15 of the Constitution of India; (c) to declare Sections 3(2), 6 and 9 of Hindu Minority and Guardianship Act read with Sections 6 of Guardians and Wards Act as void; (d) to declare the unfettered and absolute discretion allowed to a Hindu spouse to make testamentary disposition without providing for an ascertained share of his or her spouse and dependent, void. Similarly in their writ petition, the Young Women Christian Association sought for a declaration that Section 10 and 34 of Indian Divorce Act and Sections 43 to 48 of Indian Succession Act are void. =Dismissing the writ petitions, this Court HELD : 1.1. The Legislature is 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. The Courts are not concerned with the proprietory of their views or their wisdom. [395-F] 1.2. The Courts can at best advise and focus attention on the State policy on the problem and shake it from its slumber, goading it to awaken, march and reach the goal. For, in whatever measure be the concern of the court, it compulsively needs to apply, somewhere and at sometime, breaks to its self-motion, described in judicial parlance as self-restraint. Maharshi Avadhesh v. Union of India, [1994] Supp. 1 SCC 715; Reynold Rajamani & Anr. v. Union of India & Anr., [1982] 2 SCC 474; Pannalal Bansilal & Ors. v. State of A.P. & Anr., [1996] 2 SCC 498 and Madhu Kishwar & Ors. v. State of Bihar & Ors., [1996] 5 SCC 125, relied on. 2. The Constitution of India itself recognises the existence of per-sonal laws in terms when it deals with the topic falling under personal law in item 5 in the Concurrent List-List III. Yet the framers of the Constitution 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, the personal laws do not fall within Article 13(f) at all. [399-D-G] Slate of Bombay v. Narasu Appa Mali, AIR (1952) Bom. 84, cited. Krishna Singh v. Mathura Ahir & Ors., AIR (1980) SC 707, relied on. Sarla Mudgal & Ors. v. Union of India & Ors. [1995] 3 SCC 635, distinguished. 3. There is no substance in the challenge by the petitioner to the vires of the provisions of Section 10 of the Indian Divorce Act as being discriminatory, and therefore, violative of Article 14 of the Constitution. [404-E] Anil Kumar Mahsi v. Union of India & Anr. [1994] 5 SCC 704, followed. 4. So far as the challenge to the Muslim Women (Protection of Rights on Divorce) Act, 1986 is concerned, the said issue is pending before a Constitution Bench of this Court. Therefore, there is no reason to multiply proceedings in that behalf. [404-F] CIVIL ORIGINAL JURISDICTION : Writ Petition (C) No. 494 of 1996 Etc. =1997 AIR 3614, 1997( 2 )SCR 389, 1997( 3 )SCC 573, 1997( 2 )SCALE381 , 1997( 3 )JT 171

PETITIONER:
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AHMEDABAD WOMEN ACTION GROUP (AWAG) & ORS.

 Vs.

RESPONDENT:
UNION OF INDIA

DATE OF JUDGMENT: 24/02/1997

BENCH:
CJI, SUJATA V. MANOHAR, K. VENKATASWAMIW I T HWRIT PETITION (CIVIL) NO. 196 OF 1996LOK SEVAK SANGH & ORS.V.UNION OF INDIAW I T HWRIT PETITION (CIVIL) NO. 721 OF 1996YOUNG WOMAN CHRISTIAN ASSOCIATION (YWCA) & ORS.V.UNION OF INDIA

ACT:

HEADNOTE:

JUDGMENT:
 J U D G M E N T
VENKATASWAMI. J.
 All these Writ Petitions are filed as Public Interest
Litigation. In W.P. (C) No. 494/96. the reliefs prayed foe
are as follows :
 (a) to declare muslim Personal Law
 which allows ploygamy as void as
 offending Articles 14 and 15 of the
 Constitution;
 (b) to declare Muslim Personal Law
 which enables a Muslim male to give
 unilateral Talaq to his wife
 without her consent and without
 resort to judicial process of
 courts. as void, offending Articles
 13. 14 and 15 of the Constitution;
 (c) to declare that the mere fact
 that a Muslim husband takes mote
 than one wife is an act of cruelty
 within the meaning of Clause VIII
 (f) of Section 2 of Dissolution of
 Muslim Marriages Act. 1939.
 (d) to declare that muslim Women
 (Protection of Rights on Divorce
 Act. 1986 is void as infringing
 Articles 14 and 15.
 (e) to further declare that the
 provisions of Sunni and Shia laws
 of inheritence which discriminate
 against females in their share as
 compared to the share of males of
 the same status. void as
 discriminating against females only
 on the ground of sex.
 In writ Petition (CO No. 196/96. the reliefs prayed for
are the following:-
 (a) to declare Sections 2(2). 5
 (ii) & (iii), 6 and Explanation to
 Section 30 of Hindu Succession Act.
 1956. as void offending Articles 14
 and 15 read with Article 13 of the
 Constitution of India:
 (b) to declare Section (2) of
 Hindu Marriage Act, 1955, as void
 offending Articles 14 and 15 of the
 Constitution of India;
 (c) to declare Sections 3 (2), 6
 and 9 of Hindu minority and
 Guardianship Act read with Sections
 6 of Guardians and wards Act void;
 (d) to declare the unfettered and
 absolute discretion allowed to a
 Hindu spouse to make testamentary
 disposition without providing for
 an ascertained share of his or her
 spouse and dependant. void.
 In writ Petition (C) No. 721/96.
 the reliefs prayed for are
 following :-
 (a) to declare Sections 10 and 34
 of India Divorce Act void and also
 to declare Sections 43 to 48 of
 Indian Succession Act void.
 At the outset. we would like to state that these Writ
Petitions do not deserve disposal on merits inasmuch as the
arguments advanced by the learned Sr. Advocate before us
wholly involve issues of State policies with the Court will
not ordinarily have any concern. Further. We find 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.
 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 Reynold Raiamani and Another vs. Union of India and
Another (1982) 2 SCC 474 this Court while dealing with the
scope of sections 7 and 10 of the Indian Divorce Act. 1869
held as follows :-
 4. It cannot be denied that
 society is generally interested in
 maintaining the marriage bond and
 preserving the matrimonial state
 with a view to protecting societal
 stability, the family home and the
 proper growth and happiness of
 children of the marriage.
 legislation for the purpose of
 dissolving the marriage constitutes
 a departure from that primary
 principle, and the legislature is
 extremely circumspect in setting
 forth the grounds on which a
 marriage may be dissolved. The
 history of all matrimonial
 legislation will show that at the
 outset conservative attitudes
 influenced the grounds on which
 separation or divorce could be
 granted. Over the decades, a more
 liberal attitude has been adopted.
 Tostered by a recognition of the
 need for the individual happiness
 of the adult parties directly
 involved. But although the grounds
 for divorce have been liberalised,
 they nevertheless continue to form
 an exception to the general
 principle favouring the
 continuation of the marital tie. In
 our opinion. When a Legislative
 provision specifies the grounds on
 which divorce may be granted they
 constitute the only condition on
 which the court has jurisdiction to
 grant divorce. If grounds need to
 be added to those already
 specifically set forth in the
 legislation, that is the business
 of the legislature and not of the
 courts. It is another matter that
 in construing the language in which
 the grounds are incorporated the
 courts should give a liberal
 construction to It. Indeed. We
 think tat the courts must give the
 fullest amplitude of meaning to
 such a provision. But it must be a
 meaning which the language of the
 section is capable of holding. It
 cannot be extended by adding new
 grounds not enumerated in the
 section.
 6. Miss Thomas appeals to us to
 adopt a policy of social
 engineering and to give to Section
 / the content which has been
 enacted in Section 28 of the
 special Marriage Act. 1958 and
 Section 18-B of the Hindu Marriage
 Act, 1955, both of which provide
 for divorce by mutual consent. It
 is possible to say tat the law
 relating to Hindu marriages and to
 marriages governed by the Special
 Marriage Act Presents a more
 advanced stage of development in
 this area than the Indian Divorce
 Act. However. Whether a provision
 for divorce by mutual consent
 should be included in the Indian
 Divorce Act is a matter of
 legislative policy. The courts
 cannot extend or enlarge
 legislative policy by adding a
 provision to the statute which was
 never enacted there.
 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
 visualise 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.
 In State of Bombay vs. Narasu Appa Mali (AIR 1952
Bombay 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 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 bock in
 order to advance the welfare of the
 State.
 It was further observed that :-
 "There can be no doubt that the
 Muslims have been excluded from the
 operation of the Act in question.
 Even Section 494, Penal Code, Which
 makes bigamy an offence applies to
 Parsis, Christians and others, but
 not to Muslims because polygamy is
 recognised as a valid institution
 when a Muslim male marries more
 than one wife. The question that we
 have to consider is whether there
 is any reasonable basis for
 creating the Muslims as a separate
 class to which the laws prohibiting
 polygamy should not apply. Now. It
 is an historic fact that both the
 Muslims and the Hindus in this
 country have their respective
 religious texts and which embody
 their own distinctive evolution and
 which are coloured by their own
 distinctive backgrounds. Article 44
 itself recognises separate and
 distinctive personal laws because
 it lays down as a directive to be
 achieved that within a measurable
 time India should enjoy the
 privilege of a common uniform Civil
 Code applicable to all its citizens
 irrespective of race or religion.
 Therefore, what the Legislature has
 attempted to do by the Hindu
 Bigamous Marriages Act is to
 introduce social reform lin respect
 of a particular community having
 its own personal law. The
 institution of marriage is
 differently looked upon by the
 Hindus and the Muslims. Whereas to
 the former, it is a sacrament, to
 the latter it is a matter of
 contract. That is also the reason
 why the question of the dissolution
 of marriage is differently tackled
 by the two religions. While the
 Muslim law admits of easy divorce,
 Hindu marriage is considered
 indissoluble and it is only
 recently that the State passed
 legislation permitting divorce
 among Hindus. The State was also
 entitled to consider the
 educational permitting divorce
 among Hindus. The State was also
 entitled to consider the
 educational development of the two
 communities. One community might be
 prepared to accept and work social
 reform; another may not yet be
 prepared for it: and Art. 14 does
 not lay down that any legislation
 that the State may be
 communitywise. From these
 considerations it follows that if
 there is a discirmination against
 the Hindu in the applicability of
 the Hindus Bigamous Marriages Act.
 that discrimination is not based
 only upon ground of religion.
 Equally so if the law with regard
 to bigamous marriages is not
 uniform, the difference and
 distinction is not arbitrary or
 capricious, but is based upon
 reasonable grounds.
 Gajendragadkar J., in his concurrent but separate
opinion expressed the same view by observing as follows:-
 "The next question is whether this
 Act discriminates against the
 Hindus in reference to the
 Christian and the Parsi citizens of
 this State, in so the specially
 severe provisions as to punishment
 and procedure. It is true that
 whereas under the general criminal
 law the offence of bigamy is
 cognizable only on the complaint of
 the wife, the impugned Act makes it
 cognizable so that the complaint of
 the wife, is unnecessary to start
 the proceedings against the
 offending husband. The offence of
 bigamy is compoundable under the
 general criminal law: but not under
 the impugned Act ; and the word
 "abettor under the impugned Act is
 also wider than this question,
 however, it must be remembered that
 the evil of bigamy prevailing
 amongst the Hindus could not be
 effectively put down unless the
 offence was made cognizable and
 unless amongst the abettors were
 included ever the priests who
 officiate at Hindu Marriages. As I
 have already mentioned, Hindu
 marriage is a love and devotion of
 the Hindu wife for her husband id
 well known. Legislature may well
 have thought that it would be
 futile to make the offence of Hindu
 bigamy punishable at the instance
 of the wife because Hindu wives may
 not come forward with any complaint
 at all. Among the Christians and
 the Parsis, monogamy has been
 practised for several years and
 marriage amongst them is a matter
 of contract. Amongst them divorce
 is permissible, whereas amongst the
 Hindus it was not permissible for
 so many years. If the Legislature
 acting on these considerations
 wanted to provide for a special
 procedure in dealing with bigamous
 marriages amongst the Hindus it
 cannot be said that the Legislature
 was discriminating against the
 Hindus only on the ground of
 religion. It was for the
 Legislature to take into account
 the social customs and beliefs of
 the Hindus and other relevant
 considerations before deciding
 whether it was necessary to provide
 for special provisions in dealing
 with bigamous marriages amongst
 them. That clearly is the province
 of the Legislature and with the
 propriety of their views or their
 wisdom Courts are not concerned. I,
 therefore, hold that there is no
 substance in the argument that the
 penal provisions of the impugned
 Act constitute discrimination
 against the Hindus only on the
 ground of religion.
 There is one more point with
 which I would like to deal. It has
 been argued before us that the
 impugned Act should have been made
 State of Bombay. It is said that if
 the impugned Act constitutes a
 measure of social reform. There is
 no reason why the State Legislature
 should not have given the Mahomedan
 community the benefit of this
 social reform. The Union of India
 is a secular State and the State
 Legislature was wrong in making a
 distinction between its citizens on
 the ground of religious differences
 and in applying the provisions of
 the impugned Act only to Hindus. In
 part this argument is political and
 as such we are not concerned with
 it. But part of the argument is
 based upon the provisions of
 Article 14 of the Constitution of
 India and it is necessary to deal
 with this aspect of the argument.
 The learned judge further observed as follows :-
 "But it is argued that even as to
 this social reform, the State
 Legislature should have made it all
 pervasive and should not have left
 the Mahomedans outside its ambit.
 That. as I have already said, is
 partly a political, and partly a
 legal argument. Whether it was
 expedient to make this Act
 applicable to the Mahomedans as
 well as to the Hindus would be a
 matter for the Legislature to
 consider. It is now well settled
 that the equality before the law
 which is guaranteed by Article 14
 is not offended by the impugned Act
 if the Classification which the Act
 makes is based on reasonable and
 rational considerations. It is not
 obligatory in taking gradual steps
 for social welfare and reform does
 not introduce distinctions or
 classifications which are
 unreasonable, irrational or
 oppressive, it cannot be said that
 the equality before law is
 offended. The State Legislature may
 have thought that the Hindu
 community was more ripe for the
 reform in question. Social
 reformers amongst the Hindus have
 years past and the social
 conscience of the Hindus, according
 to the Legislature, may have been
 mire in tune with the spirit of the
 proposed reform. Besides, amongst
 the Mahomedans divorce has always
 been permissible and marriage
 amongst them is a matter of
 contract. If the State Legislature
 acting on such considerations
 decided to enforce this reform in
 the first instance amongst the
 Hindus, it would be impossible in
 my opinion to hold that in
 confining the impugned Act to
 Hindus as defined by the Act, it
 has violated the equality before
 law as guaranteed by Article 14. In
 my opinion, therefore, the argument
 that Article 14 is violated by the
 impugned Act mus fail."
 Gajendragadkar j. also expressed his opinion on the
question whether Part III of the Constitution applies to
personal laws. The learned Judge observed as follows :-
 "The Constitution of India itself
 recognises 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 is not used in Art.
 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 fail within Article 13(i) at
 all."
 In Krishna Singh vs. Mathura Ahir and others (AIR 1980
SC 707) this Court while considering the question whether a
Sudra could be ordained to a religious order and become a
Sanyasi or Yati and, therefore, installed as a Mahant of the
Garwaghat Math according to the tenets of the Sant Mat
Sampradaya, inter alia held as follows :-
 "It would be convenient, at the
 outset, to deal with the view
 expressed by the High Court that
 the strict rule enjoined by the
 Smriti writers as a result of which
 Sudras were considered to be
 incapable of entering the order of
 yati or sanyasi, has ceased to be
 valid because of the fundamental
 rights guaranteed under Part III of
 the Constitution. In our opinion,
 the learned Judges failed to
 appreciate that Part III of the
 Constitution does not touch upon
 the personal laws of the parties.
 In applying the personal laws of
 the parties. he could not introduce
 his own concepts of the law as
 derived from recognised and
 authoritative sources of Hindu law,
 i.e. Smritis and commentaries
 referred to, as interpreted in the
 judgment of various High Courts,
 except where such law is altered by
 any usage or custom or is modified
 or abrogated by statute,
 In Sarla Mudgal and others vs. union of India and
Others (1995) 3 SCC 635 this Court observed :-
 "Article 33 is based on the concept
 that there is no necessary
 connection between religion and
 personal law in a civilised
 society. Article 25 guarantees
 religious freedom whereas Article
 44 seeks to divest religion from
 social relations and personal law.
 Marriage, succession and like
 matters of a secular character
 cannot be brought within the
 guarantee enshrined under Article
 25, 26 and 27. The personal of the
 Hindus. such as relating to
 marriage, succession and the like
 have all a sacramental origin. In
 the same manner as in the case of
 the Muslims or the Christians. The
 Hindus along with Sikhs, Buddhists
 and Jains have forsaken their
 sentiments in the cause of the
 national unity and integration,
 some other communities would not,
 though the Constitution enjoins the
 establishment of a "common civil
 code" for the whole of India.
 However, none of the decisions referred to above were
placed before the Division Bench as they find no mention in
the separate judgments of Kuldip Singh, J. and R.M. Sahai,
J. That is because there was no occasion to consider whether
Part III of the constitution of India had any application to
personal laws or not. Suffice it to say that we are
satisfied that the arguments advanced before us as pointed
out at the outset involve issues. in our opinion, to by
dealt with by the legislature.
 We may further point out that the question regarding
the desirability of enacting a Uniform Civil Code did not
directly arise in that case. The questions which were
formulated for decision by Kuldip Singh, J. in his judgment
were these :
 "[W]hether a Hindu husband, married
 under Hindu law, by embracing
 Islam, can solemnise second
 marriage? Whether such a marriage
 without having the first marriage
 dissolved under law, would be a
 valid marriage dissolved under law,
 would be a valid marriage dissolved
 under law, would be a valid
 marriage qua the first wife who
 continues to be Hindu? Whether the
 apostate husband would be guilty of
 the offence under Section 494 of
 the Indian Penal Code (IPC)?"
 Sahai. J. in his separate but concurring judgment
referred to the necessity for a Uniform Civil Code and said:
 "The desirability of Uniform Code
 can hardly be doubted. But it can
 concretize only when social climate
 is properly built up by elite of
 the society; statesmen amongst
 leaders who instead of gaining
 personal mileage rise above and
 awaken the masses to accept the
 change."
 Sahai. J. was of the opinion that while it was
desirable to have a Uniform Civil Code, the time was yet not
ripe and the issue should be entrusted to the Law Commission
which may examine the same in consultation with the
Minorities Commission. That is why when the Court drew up
the final order signed by both the learned Judges it said
"the writ petitions are allowed in terms of the answer to
the questions posed in the opinion of Kuldip Singh, J."
These questions we have extracted earlier and the decision
was confined to conclusions reached thereon whereas the
observations on the desirability of enacting the Uniform
Civil Code were incidentally made.
 In Madhu Kishwar & Others vs. State of Bihar & Others
(1996 (5) SCC 125). this Court while considering the
challenge made to certain provisions of the Chotanagpur
Tenancy Act, 1908, observed as follows:-
 "It is worthwhile to account some
 legislation on the subject. The
 Hindu Succession Act governs and
 prescribes rules of succession
 applicable to a large majority of
 Indians being Hindus, Sikhs,
 Buddhists, Jains etc. whereunder
 since 1956, if not earlier, the
 female heir is put on a par with a
 male heir. Next in the line of
 numbers is the Shariat law,
 applicable to Muslims, whereunder
 the female heir has an unequal
 share in the inheritance, by and
 large half of what a male gets.
 Then comes the Indian Succession
 Act which applies to Christians and
 by and large to people not covered
 under the aforesaid two laws,
 conferring in a certain manner
 heirship on females as also males.
 Certain chapters thereof are not
 made applicable to certain
 communities. Sub-section (2) of
 Section 2 of the Hindu Succession
 Act significantly provides that
 nothing contained in the Act shall
 apply to the members of any
 Scheduled Tribe within the meaning
 of clause (25) of Article 366 of
 the Constitution, unless otherwise
 directed by the Central Government
 by means of a notification in the
 Official Gazette. Section 3(2)
 further provides that in the Act,
 unless the context otherwise
 requires, words importing the
 masculine gender shall not be taken
 to include females. General rule of
 legislative practice is that unless
 there is anything repugnant in the
 subject or context, words importing
 the masculine gender shall not be
 taken to include females. General
 rule of legislative practice is
 that unless there is anything
 repugnant in the subject or
 context, words importing the
 masculine gender used in statutes
 are to be taken to include females.
 Attention be drawn to Section 13 of
 the General Clauses Act. But in
 matters of succession the general
 rule of plurality would have to be
 applied with circumspection. The
 afore provision thus appears to
 have been inserted ex abundanti
 cautela. Even under Section 3 of
 the Indian Succession Act, the
 State Government is empowered to
 exempt any race, sect or tripe from
 the operation of the Act and the
 tribes of Mundas, Oraons, Santhals
 etc. in the State of Bihar, who are
 included in our concern, have been
 so exempted. Thus neither the Hindu
 Succession Act, nor even the
 Shariat law is applicable to the
 custom-governed tribals. And
 custom, as is well recognized,
 varies from people to people and
 region to region."
 "In the fact of these divisions and
 visible barricades put up by the
 sensitive tribal people valuing
 their own customs, traditions and
 usages, judicially enforcing on
 them the principles of personal
 laws applicable to others, on an
 elitist approach or on equality
 principle, by judicial activism, is
 a difficult and mind-boggling
 effort. Brother K. Ramaswamy, J.
 seems to have taken the view that
 Indian legislatures (and
 Governments too) would not prompt
 themselves to activate in this
 direction because of political
 reasons and in this situation, an
 activist court. apolitical as it
 avowedly is, could get into action
 and legislate broadly on the lines
 as suggested by the petitioners in
 their written submissions. However
 laudable, desirable and attractive
 the result may seem, it has happily
 been viewed by our learned brother
 that an activist court is not fully
 equipped to cope with the details
 and intricacies of the legislative
 subject and can at best advise and
 focus attention on the State polity
 on the problem and shake it from
 its slumber, goading it to awaken,
 march and reach the goal. For, in
 whatever measure be the concern of
 the court, it compulsively needs to
 apply, motion, described in
 judicial parlance as self-
 restraint. We agree therefore with
 brother K. Ramaswamy, J. as summed
 up by him in the paragraph ending
 on p.36 (para 46) of his judgment
 that under the circumstances it is
 not desirable to declare the
 customs of tribal inhabitants as
 offending Articles 14, 45 and 21 of
 the Constitution and each case must
 be examined when full facts are
 placed before the court.
 With regard to the statutory
 provisions of the Act, he has
 proposed to the reading down of
 Sections 7 and 8 in order to
 preserve their constitutionality.
 This approach is available from
 p.36 (paras 47, 48) onwards of his
 judgment. The words "male
 descendant wherever occurring ,
 would include "female descendants".
 It is also proposed that even
 though the provisions of the Hindu
 Succession Act, 1925 in terms would
 not apply to the Schedule Tribes,
 their general principles composing
 of justice, equity and fair play
 would apply to them. On this basis
 it has been proposed to take the
 view that the Scheduled Tribe women
 would succeed to the estate of
 paternal parent, brother or husband
 as heirs by intestate succession
 and inherit the property in equal
 shares with the male heir with
 absolute rights as per the
 principles of the Hindu Succession
 Act as also the Indian Succession
 Act. However, much we may like the
 law to be so we regret our
 inability to subscribe to the means
 in achieving such objective. If
 this be the route of return on the
 court's entering the thicket, it
 would follow a beeline for similar
 claims in diverse situations, not
 stopping at tribal definitions, and
 a deafening uproar to bring other
 systems of law in line with the
 line with the systems of law in
 line with the Hindu Succession Act
 and the Indian Succession Act as
 models. Rules of succession are,
 indeed susceptible of providing
 differential treatment, not
 necessarily equal. Non-uniformities
 would not in all events violate
 Article 14. Judge-made amendments
 to provisions, should normally be
 avoided. We are thus constrained to
 take this view. even though it may
 appear to be conservative for
 adopting a cautious approach, and
 the one proposed by our learned
 brother is, regretfully not
 acceptable to us,"
 As a matter of fact the constitutionality of section 10
of the Indian Divorce Act was challenged by an aggrieved
husband and this Court in Anil Kumar Mahsi vs. Union of
Indian of India and Another (1994) 5 SCC 704 held
follows :-
 "Taking into consideration the
 muscularly weaker physique of the
 woman, her general vulnerable
 physical and social condition and
 her defensive and non-aggressive
 nature and role particularly in
 this country, the legislature can
 hardly be faulted if the said two
 grounds are made available to the
 wife and not to the husband for
 seeking dissolution of the
 marriage. For the same reasons, it
 can hardly be said that on that
 account the provisions of Section
 10 of the Act are discriminatory as
 against the husband.
 We, therefore, find that there is
 no substance in the challenge by
 the petitioner-husband to the vires
 of the provisions of Section 10 as
 being discriminatory against the
 husband and, therefore. violative
 of Article 14 of the Constitution."
 So far as the challenge to the Muslim Women (Protection
of Rights on Divorce) Act, 1986 is concerned, we understand
that the said issue is pending before the Constitution
Bench. we, therefore, do not see any reason to multiply
proceedings in that behalf.
 In the result and having regard to the earlier
decisions of this Court noticed above, we decline to
entertain these writ petitions. Accordingly, these writ
petitions are dismissed.

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One thought on “Constitution of India-Articles 13, 14, 15 and 32-Scope of-Power of the Court-Legislative policy relating to personal laws-Interference by courts- Extent of-Personal Laws. Three writ petitions were filed by different organisations under Article 32 of the Constitution of India as public interest litigation. The Ahmedabad Women Action Group prayed for the following reliefs in its writ petition :- (a) to declare Muslim Personal Law which allows polygamy as void offending Articles 14 and 15 of the Constitution; (b) to describe Muslim Personal Law which enables a Muslim male to give unilateral Talaq to his wife without her consent and without resort to judicial process of courts, as void, offending Articles 13, 14 and 15 of the Constitution. (c) to declare that the mere fact that a Muslim husband takes more than one wife is an act of cruelty within the meaning of Clause YIII (f) of Section 2 of Dissolution of Muslim Marriage Act, 1939. (d) to declare that Muslim Women (Protection of Rights on Divorce) Act, 1986 is void infringing Articles 14 and 15. (e) to further declare that the provisions of Sunni and Shia laws of inheritance which discriminate against females in their share as compared to the share of males of the same status, void as discriminating against females only on the ground of sex. In the writ petition filed by Lok Sewak Sangh, the following reliefs were prayed for- (a) to declare Sections 2(2), 5(ii) & (iii), 6 and Explanation to Section 30 of Hindu Succession Act, 1956, as void offending Articles 14 and 15 read with Article 13 of the Constitution of India; (b) to declare Section (2) of Hindu Marriage Act, 1955, as void offending Articles 14 and 15 of the Constitution of India; (c) to declare Sections 3(2), 6 and 9 of Hindu Minority and Guardianship Act read with Sections 6 of Guardians and Wards Act as void; (d) to declare the unfettered and absolute discretion allowed to a Hindu spouse to make testamentary disposition without providing for an ascertained share of his or her spouse and dependent, void. Similarly in their writ petition, the Young Women Christian Association sought for a declaration that Section 10 and 34 of Indian Divorce Act and Sections 43 to 48 of Indian Succession Act are void. =Dismissing the writ petitions, this Court HELD : 1.1. The Legislature is 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. The Courts are not concerned with the proprietory of their views or their wisdom. [395-F] 1.2. The Courts can at best advise and focus attention on the State policy on the problem and shake it from its slumber, goading it to awaken, march and reach the goal. For, in whatever measure be the concern of the court, it compulsively needs to apply, somewhere and at sometime, breaks to its self-motion, described in judicial parlance as self-restraint. Maharshi Avadhesh v. Union of India, [1994] Supp. 1 SCC 715; Reynold Rajamani & Anr. v. Union of India & Anr., [1982] 2 SCC 474; Pannalal Bansilal & Ors. v. State of A.P. & Anr., [1996] 2 SCC 498 and Madhu Kishwar & Ors. v. State of Bihar & Ors., [1996] 5 SCC 125, relied on. 2. The Constitution of India itself recognises the existence of per-sonal laws in terms when it deals with the topic falling under personal law in item 5 in the Concurrent List-List III. Yet the framers of the Constitution 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, the personal laws do not fall within Article 13(f) at all. [399-D-G] Slate of Bombay v. Narasu Appa Mali, AIR (1952) Bom. 84, cited. Krishna Singh v. Mathura Ahir & Ors., AIR (1980) SC 707, relied on. Sarla Mudgal & Ors. v. Union of India & Ors. [1995] 3 SCC 635, distinguished. 3. There is no substance in the challenge by the petitioner to the vires of the provisions of Section 10 of the Indian Divorce Act as being discriminatory, and therefore, violative of Article 14 of the Constitution. [404-E] Anil Kumar Mahsi v. Union of India & Anr. [1994] 5 SCC 704, followed. 4. So far as the challenge to the Muslim Women (Protection of Rights on Divorce) Act, 1986 is concerned, the said issue is pending before a Constitution Bench of this Court. Therefore, there is no reason to multiply proceedings in that behalf. [404-F] CIVIL ORIGINAL JURISDICTION : Writ Petition (C) No. 494 of 1996 Etc. =1997 AIR 3614, 1997( 2 )SCR 389, 1997( 3 )SCC 573, 1997( 2 )SCALE381 , 1997( 3 )JT 171

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