Transfer Petition Summary
Uniform Marriage AgeBackground
Ashwini Kumar Upadhyay is a lawyer and a BJP politician. Between August 2020 – February 2021, Upadhyay filed five petitions challenging the laws regarding the age of marriage, succession and inheritance, divorce and maintenance, adoption and guardianship on the grounds that they violate fundamental rights and directive principles in the Constitution. These petitions cumulatively aim to secure a Uniform Civil Code (UCC).
Upadhyay has challenged the different minimum marriage ages for men and women in the Delhi High Court on August 14th 2019. A similar case was also filed in the Rajasthan High Court on September 12th 2019. On October 26th, 2020 Upadhyay filed a petition in the Supreme Court (SC) seeking a transfer of both these cases to itself, to avoid contradictory judgments.
In India, women are allowed to marry at the age of 18 years and men are allowed to marry at 21. This difference in age is contained in various personal laws for different religions: s 60(1) Indian Christian Marriage Act, 1872; s 3(1)(c) Parsi Marriage and Divorce Act, 1936; s 4(c) Special Marriage Act, 1954; s 5(iii) Hindu Marriage Act, 1955; s 2(a) Prohibition of Child Marriage Act, 2006.
What Does the Petitioner Seek?
The petitioner requested the Court to:
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Transfer the cases pending in the Rajasthan and Delhi HCs to the Supreme Court to decide them collectively;
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Direct the Central Government to take steps to make the minimum age for marriage between men and women uniform;
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Declare that the different minimum age for marriage violates the constitutional guarantee of equality and international conventions;
Grounds
To Avoid Contradictory Judgments
The SC possesses the power to transfer any proceedings from one court to another, including itself. This power is contained in Article 139A of the Constitution of India.
Upadhyay argues that the two petitions at the Delhi and Rajasthan HCs deal with the same factual and legal issues. Placing these petitions before different HCs could result in different interpretations in their decisions. This would fail to bring finality to the dispute. Transferring the case to the SC would ensure that a uniform precedent is set for all courts to follow.
Difference in Marriage Age Violates the Rights to Life and Equality
The SC in multiple cases has held that the right to live with dignity includes the right of equal social standing. The petitioner refers to the Supreme Court’s judgments in cases such as Jeeja Ghosh v Union of India (2016) to make this argument.
The SC in Joseph Shine v Union of India (2019) held that differential treatment based on gender stereotypes violates the constitutional guarantee of equality. The petitioner argues that this includes discriminatory minimum age for marriage for men and women. The 205th Law Commission Report also criticises this discriminatory minimum age, stating that it “simply contributes to the stereotype that wives must be younger than their husbands”.
The Supreme Court has previously held that legislation can be made which treats different classes differently. Such a classification would not violate the right to equality, provided it is reasonable and done to ensure equality. According to the petitioner, there is no reason for this differentiation with regards to age for marriage.
Difference in Marriage Age Violates of International Obligations Under CEDAW
India is a signatory to the ‘Convention on the Elimination of All Forms of Discrimination Against Women’ (CEDAW). Article 16(1)(a) of the Convention requires the elimination of discrimination against women in marriage-related matters. They must have equal rights to freely choose a spouse and enter a marriage with full consent.
The Petitioner argues that the different marriage ages violates India’s international obligations.