' --

AHMEDABAD WOMEN ACTION GROUP AND ORS. ETC. A

v.

UNION OF INDIA

FEBRUARY 24, 1997

[A.M. AHMADI, C.J., SlJJATA V. MANOHAR AND

K. VENKATASWAMI, JJ.]

Constitution of India-Articles 13, 14, 15 and 32--Scope of-Power of

the Court-Legislative policy relating to personal laws-interference ,by

B

couns-Extent of-Personal Laws. C

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 follo~ing 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

D

to give unilateral Talaq to his ~ife mthout her consent and mthout resort E

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

mfe is an act of cruelty mthin the meaning of Clause VIII (I} 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.

F

(e) to further declare that the provisions of Sunni and Shia laws of G

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 follomng reliefs

were prayed for:-

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390 SUPREME COURT REPORTS (1997] 2 S.C.R.

A (a) to declare Sections 2(2), 5(ii) & (iii), 6 and Explanation to

B

c

D

Section 30 of Hindu Succession Act, 1956, as void offending Articles 14 and

15 read with Article 13 of the Constitutilln 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

Guar·

dianship 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 As·

sociation 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

E 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]

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.

Maharslzi Avadhcsh v. Union of India, [1994] Supp. 1 SCC 715;

Reynold Rajamani & Anr. v. Union of India & Anr., [1982] 2 SCC 474;

G 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 Jaw

H in item 5 in the Concurrent List-List Ill. Yet the framers of the Constitu-

<

AHMEDABAD WOMEN ACTIONv. U.O.I. [VENKATASWAMI,J.] 391

tion did not wish that the provisions or the personal laws should be A

challenged by reason of the fundamental rights guaranteed in Part Ill 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(1) at all. [399-D-G]

State of Bombay v. Narasu Appa Mali, AIR (1952) Born. 84, cited. B

Krishna Singh v. Mathura Ahir & Ors., AIR (1980) SC 707, relied on.

Sar/a 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 dis­

criminatory,

and therefore, violative or Article 14 of the Constitution. [404-E]

c

Anil Kumar Mahsi v. Union of India & Anr. [1994) 5 SCC 704, D

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] E

CIVIL ORIGINAL JURISDICTION : Writ Petition (C) No. 494 of

1996 Etc.

(Under Article

32 of the Constitution of India.) T.U. Mehta and P.P. Juneja for the Petitioners.

The Judgment of the Court was delivered

by :

F

VENKATASWAMI. J. All these Writ Petitions are filed as Public

Interest Litigation. In W.P. (C) No.

494/96, the reliefs prayed for are as G

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

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SUPREME COURT REPORTS (1997] 2 S.C.R.

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)

0

to declare that the mere fact that a Muslim husband takes more

than one

wife is act of cruelty within the meaning of Clause VIII

(t) 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

inheritance which disriminating 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 (C) No. 496/96, the reliefs prayed for are the follow-

(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 Guar­

dianship 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 provid­

ing for an ascertained share of his or her spouse and dependent,

void.

In writ Petition (C)

No. 721/96, the reliefs prayed for are following:-

(a) to declare Sections

10 and 34 of Indian Divorce Act void and

also to declare Sections

43 to 48 of Indian Succession Act void.

H At the outset, we would like to slate that these Writ

Petitions do not

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AHMEDABAD WOMEN ACTIONv. U.0.1. [VENKATASWAMI,J.] 393

deserve disposal on merits inasmuch as the arguments advanced by the

A

learned Sr. Advocate before us wholly involve issues of State policies with

which 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

MaharshiAvadl!esh v. Union of India, (1994]

Supp. 1 SCC 715,.

this Court while dismissing a Petition under Article 32 of the Constitution

held

as follows :-

B

"This is a petition by a party in person under Article 32 of the C

Constitution. The prayers 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 D

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.

17ie Court cannot legislate in these matters. The Writ E

petition is dismissed."

In Reynold Rajamani and Another v. Union of India and Another,

(1982] 2 SCC 474 this Court while deali~g with the scope of sections 7 and

10 of the Indian Divorce Act, 1869 held as follows:-

F

"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

· G

extremely circumspect in setting forth the grounds on which a

marriage may be dissolved. The history of all matrimonial legisla-

tion

will show that at the ontset conservative attitudes influenced

the grounds on which separation

or divorce could be granted.

Over

the decades, a more liberal attitude has been adopted, fostered by . H

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394

SUPREME COURT REPORTS [1997] 2 S.C.R.

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 marita~

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 in construing the language in which the

grounds are incorporated the courts should give a liberal construc­

tion to it. Indeed,

we think that 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 engineer­

ing

and to give to section 7 the content which has been enacted in

Section 26 of the Special Marriage Act, 1954 and Section 13-B of

the Hindu Marriage Act, 1955, both of which provide for divorce

by mutual consent.

It is possible to say that the law relating to

Hindu marriages

and to marriages governed by the

Special Mar­

riage 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 v. State of A.P. and Another, [1996]

2 SCC 498 validity of Sections 15, 16, 17, 29(5) and 144 of the AP.

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, beliefs

or

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AHMEDABADWOM::'.N AC110Nv. U.0.1. [VENKATASWAMl,J.) 395

tenets propounded by different religions or their offshoots, the A

founding fathers, while making the Constitution, were confronted

with problems to unify and integrate people

of India professing

different religious faiths, born in different castes, sex or

sub-sec­

tions 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 prin- B

ciples of the Constitution themselves visualise diversity and

at­

tempted t<? foster uniformity among people of different faiths. 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 progres- C

sive 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 D

which is most acute can be remedied by process of law at stages."

In State of Bombay v. 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

wh.at 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

E

of the State and it is for them to lay down the policy that the State

should pursue. The ref ore, it is for them to detennine what legisl:rtion F

to put up on the statute book 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 G

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 H

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396

SUPREME COURT REPORTS (1997] 2 S.C.R.

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 own personal

laws which are based upon their

respective religious texts and which embody their own distinctive

evolution and which are coloured by their own distinctive back­

grounds. Article 44 itself recognises separate and distinctive per­

sonal 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 irrespec­

tive of race or religion. Therefore, what the Legislature has at­

tempted to do by the Hindu Bigamous Marriages Act

is to

introduce social reform in 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 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 embark upon

must necessarily

be of an all embracing character. The

State may

rightly decide to bring about social reform by stages and the stages

may

be territorial or they may be communitywise. From these

considerations

it follows that if there is a discirmination against

the Hindu in the applicablity 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· i.$ not

uniform, the difference and distinction

is not arbitrary or capri­

cious, 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

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HMEDABAD WOMEN ACTION v. U.O.I. [VENKATASW AMI, J.] 397

Hindus in reference to the Christian and the Parsi citizens of this A

State, in so far as it subjects the Hindus alone to 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 unneces-B

sary to start the proceedings against the offending husband. The

offence of bigamy

is compoundable under the general criminal law;

but not

unde; the impugned Act; and the word "abettor" under the

impugned Act

is

aJso wider than under the Indian Penal Code.

· These provisions in fact are alleged to constitute discrimination

against the Hindus.

In dealing with this question, however, it must C

be remembered that the Legislature may have thought 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 even the priests who officiate

at Hindu Marriages. As I have already mentioned, Hindu marriage D

is a love and devotion of the Hindu wife for her husband is 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 Hin<lu wives may not come forward with any

complaint at

all. Among the Christians and the

Parsis, monogamy E

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 F

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 G

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

one impugned Act constitute discrimination against the Hindus

only on the ground of religion.

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SUPREME COURT REPORTS (1997) 2 S.C.R.

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 applicable to the Mahomedan citizens of the State of Bom­

bay.

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 on 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 for the State Legislature

always and in every case

to provide for social welfare and reform

by one step. So long as the State Legislature in taking gradual steps

for social welfare and reform does not iutroduce 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 agitated for this reform vehemently for many years

past and the social conscience of the Hindus, according to the

Legislature, may have been more 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

AHMED ABAD WOMEN ACTION v. U.O.L [VENKATASWAMI, J.] 399

of contract. If the State Legislature acting on such considerations A

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 B

by the impugned Act must

fail.";

Gajendragadkar J. also expressed his op1mon on the question

whether Patt III of the Constitution applies to personal laws. The learned

Judge observed as follows

:-

c "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 D

partition; all matters in respect of which parties in judicial proceed­

ings were immediately before the commencement of this Constitu-

tion 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 Art. 13, because, in my opinion, the E

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 F

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 .I ustice in holding that

the personal laws do not fall within Article 13(j) at all." G

In Krishna Singh v. 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

Sanvasi or Yati and, therefore, installed

as a Mahant

of the Garwagnat Math according to the tenets of the

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400 SUPREME COURT REPORTS [1997] 2 S.C.R.

A Mat Sampradaya, inter alia held as follows :-

B

c

"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 Sar/a Mudgal and others v. Union of India and Others, (1995] 3

D sec 635 this Court observed :-

E

F

"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 law 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 senti­

ments in the cause of the national unity and integration, some other

communities would not, though the Constitution enjoins the estab­

lishment of a

"common civil code" for the whole of India."

However, none of the decisions referred to above were placed before

G 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 applica­

tion 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

iss·ues,

H in our opinion, to be dealt with by the legislature.

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AHMEDABADWOMEN ACTIONv. U.0.1. [VENKATASWAMI,J.) 401

We may further point out that the question regarding the desirability A

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

B ·a marriage without having the first 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

c

it can concretize only when social climate is properly built up by

elite of the society; statesmen amongst leaders who instead of D

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 E

entrusted to the Law Commission which may examine the same in consult­

ation 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 F

observations on the desirability of enacting the Uniform Civil Code were

incidentally made.

In

Madhu Kish war & Others v.

State of Bilzar & Others, [1996) 5 SCC

125, this Court while considering the challenge made to certain provisions G

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

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SUPREME COURT REPORTS (1997] 2 S.C.R.

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 signiiicantly 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

me<tns 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

im­

porting 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 tribe from

the operation of the Act and the tribes of Mundas, Oraons,

Sant~als etc. in the State of Bihar, who are included in our concern,

have been so exempted. Thus neither the Hindu Succession-Act,

nor

the Indian Succession Act, nor even the Shariat law is

ap­

plicable 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

--

,.

AHMEDABADWOMENACTIONv. U.O.I.[VENKATASWAMI,J.] 403

situation, an activist court, a political as it avowedly is, could get A

into action and legislate broadly on the lines as suggested by the

petitioriers. 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 cowt is not

fully

equipped to cope with the details and intricacies of the legislative B

subject and can at best advise and focus attention 011 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 concem

of the court, it compulsively needs to apply, somewhere and at

sometime, brakes to its self-motion, described in judicial parlance as

self-restraint. We agree therefore with brother K. Ramaswamy, J. C

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 lo

declare the customs of tribal inhabitants

as offending Articles 14,

15 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.

D

36 (paras 47, 48) onwards of his judgment. The words

"male

descendant wherever occurring, would include "female descen- E

dants". It is also proposed that even though the provisions of the

Hindu Succession Act, 1956 and the India Succession Act, 1925 in

terms would not apply to the Schedule Tribes, there general

principles composing of justice, equity and fair play would apply

to them. On this basis it has been proposed to tz.ke the view that F

the Scheduled Tribe women would succeed to the estate of pater-

nal parent, brother or husband

as heirs by intestate succession an<l

inherit the property in equal shares with the male heir with ab­

solute 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 inablity to subscribe to the means .in achieving G

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 deafending

uproar to bring other systems of law in line with the Hindu

Succession Act and the Indian Succession Act

as models. Rules of H

404

A

B

SUPREME COURT REPORTS (1997] 2 S.C.R.

succession are, indeed susceptible of providing differential treat­

ment, not necesarily equal. Non-uniformities would not

in all

events violate Article

14. Judge-made amendments to provisions,

over and above the available legislation, should nonnally 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 accept­

able 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

C Anil

Kuma; Mahsi v. Union of India and Another, [1994] 5 SCC 704 held

as follows

:-

D

E

"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, viola­

tive of Article

14 of the

Constitution."

F 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.

G 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.

B.K.M.

Petitions dismissed.