Mrs. Pragati Varghese And Etc. vs Cyril George Varghese And Etc. on 6 May, 1997

    Mrs. Pragati Varghese And Etc. vs Cyril George Varghese And Etc. on 6/5/1997

ORDER

   Agarwal, J.

   1. Present suits arc filed by Christian wives for dissolution of their
marriages under Section 10 of the Indian Divorce Act, 1869 (hereinafter referred
as 'the Act'). Each of them impugn the vires of the provisions of Section 10 of
the Act which provides for the grounds on which a husband and wife can sue for
dissolution of marriage. It is contended that the provisions are archaic and
adversely discriminate wives as against husbands merely on ground of sex and
are, therefore, violative of article 15 of the Constitution. It is further
contended that the aforesaid provisions adversely discriminate them vis-a-vis
wives belonging to other communities. They are, therefore, denied equality
before law and hence the provisions are violative of Article 14 of the
Constitution. It is also contended that the aforesaid provisions force them to
continue to live with their husbands as wives even though they are subjected to
cruelty or desertion. They are, therefore, deprived of their right to life and
personal liberty thereby violating their dignity. The provisions, therefore,
contravene Article 21 of the Constitution.

   2. Plaintiffs have also impugned certain ancillary provisions of the Act
namely Sections 17 and 20 of the Act which provide for a requirement of
confirmation of decrees for dissolution of marriage or nullity of marriage,
passed by District Judges, by the High Court and that too normally by a Bench of
not less than three Judges.

   3. Present suits were filed on the original side of this Court and came up
for hearing before the learned single Judge Mrs K. K. Baam, J. When the
aforesaid challenges was raised before her, by an order passed on 20th of
December, 1996, she has referred the suits to a larger Bench under Rule 28 of
the High Court. Original Side Rules, 1980. The learned Chief Justice has,
thereafter, referred the suits to the present Full Bench for deciding the
aforesaid issues raised in these suits.

   4. Sections 10, 17 and 20 of the Act, insofar as they are relevant, provides
as under:

     "10. When husband may petition for dissolution. --Any husband may present a
petition to the District Court or to the High Court, praying that his marriage
may be dissolved on the ground that his wife has, since the solemnization
thereof, been guilty of adultery.

     When wife may petition for dissolution. --Any wife may present a petition
to the District Court or to the High Court, praying that her marriage may be
dissolved on the ground that, since the solemnization thereof, her husband has
exchanged his profession of Christianity for the profession of some other
religion, and gone through a form of marriage with another woman;

     or has been guilty of incestuous adultery, or of bigamy with adultery,

     or of marriage with another woman with adultery.

     or of rape, sodomy or bestiality,

     or of adultery coupled with such cruelty as without adultery would have
entitled her to a divorce a mensa et thoro,

     or of adultery coupled with desertion, without reasonable excuse, for two
years or upwards."

     17. Confirmation of decree for dissolution by District Judge. -- Every
decree for a dissolution of marriage made by a District Judge shall be subject
to confirmation by the High Court.

     Cases for confirmation of a decree for dissolution of marriage shall be
heard (where the number of the Judges of the High Court is three or upwards) by
a Court composed of three such Judges and in case of difference the opinion of
the majority shall prevail, or (where the number of the Judges of the High Court
is two) by a Court composed of such two Judges, and in case of difference the
opinion of the Senior Judges shall prevail.

     20. Confirmation of District Judge's decree. -- Every decree of nullity of
marriage made by a District Judge shall be subject to confirmation by the High
Court and the provisions of Section seventeen, clauses one, two, three and four,
shall, mutatis mutandis apply to such decrees."

   5. Mrs. Desai, Mrs. Agnes and Mr. Bagaria appearing on behalf of the
plaintiffs have contended that the grounds available to the husbands and wives
under Section 10 of the Act are discriminatory. Whereas a husband can claim
divorce merely by proving that his wife has been guilty of adultery, the wife is
not given a similar right. She is required to prove that her husband is guilty
of incestuous adultery or bigamy with adultery or marriage with another woman,
with adultery or adultery coupled with cruelly or, adultery coupled with
desertion. They have further contended that wives, who arc governed by the Act,
arc also discriminated vis-a-vis wives governed by other statues such as (i)
Hindi Marriage Act, 1955 (ii) Dissolution of Muslim Marriages Act, 1939, (iii)
The Parsi Marriage and Divorce Act, 1936, (iv) The Special Marriage Act, 1954,
and (v) The Foreign Marriage Act, 1959. Whereas the aforesaid enactments have
provided larger rights to the wives to claim divorce, the same is denied to
wives who are governed by the present Act. Aforesaid provisions of 'the Act'
are, therefore, violative of Articles 14 and 15 of the Constitution. It is
further contended that the legal effect Of Section 10 is to compel wives who are
cruelly treated or arc deserted to continue to live as the wife of a man she
hates. Such a life will be a sub-human life without dignity and personal liberty
and is, therefore, violative of Article 21 Of the Constitution.

   6. Under Section 22 of 'the Act', it is pointed out that Christian spouses
are not entitled to dissolution of marriage on grounds of adultery, cruelly or
desertion but are entitled Only to judicial separation which has the effect of a
divorce a mensa et thoro i.e. separation only from bed and board whereunder
matrimonial bonds remain undissolved. But spouses governed by other Acts such as
Special Marriage Act, Hindu Marriage Act, 1955, Parsi Marriage and Divorce Act,
1936, Dissolution of Muslim Marriages Act, 1939 are entitled to dissolution of
marriage and not merely judicial separation on these grounds. Christian spouses
are thus discriminated only on the ground of their being Christians by religion.
This violates the mandate of Article 15 of the Constitution.

   7. Article 21 guarantees protection of life and personal liberty. Right to
life, includes the right to life with human dignity. A Christian wife, who is
treated cruelly by her husband and is subjected to indignities is compelled to
live with him without dignity. Personal liberty guaranteed to every person under
Article 21 of the Constitution is denied to Christian women.

   8. It is further contended that the ambit and scope of Article 21 has been
expanded by Courts from time to time keeping pace with the changes in society
and changing needs of the people. The Supreme Court has expanded the reach and
ambit of the fundamental right of personal liberty enshrined in Article 21 being
of widest amplitude. Reliance has been placed on the cases of (i) "Pathumma v.
State of Kerala", ; (ii) Francis Colaria Mullin v. Administrator, Union
Territory of Delhi AIR 1981 SC 746; (iii) "Smt. Triveniben v. State of Gujarat",
AIR 1989 SC 1355; and (iv) "Unni Krishnan J.P. v. State of Andhra Pradesh", . In
the case of "P.T. Parmanand

   Katara v. Union of India", , the Supreme Court has gone on lo hold that the
right to dignity and fair treatment under Article 21 is not only avail a living
man but also to his body after his Jail Authorities all over the country are
directed not to keep the body of condemned prisoner suspended after the medical
officer has declared him dead. Christian women have, however, been left far
behind.

   9. It is contended that Section 10 of the Act, to the extent that it requires
adultery to be coupled with cruelty as a ground for divorce is viotative of
Articles 14 and 21 of the Constitution. The right to life under Article 21 takes
in its sweep a right to life with dignity, without cruelty, mental or physical,
and without constant fear of torture and violence. The right to life guaranteed
by the Constitution includes the right to seek dissolution of marriage if its
existence is an unbearable suffering. Section 10 denies the Christian woman the
right to get dissolution of marriage on the grounds of cruelty even when the
marital relationship has been broken. Such a law that compels her to live with a
person who is her tormentor till death is oppressive, arbitrary and violative of
Articles 14 and 21 of the Constitution. It will be a sub-human life without
dignity. It will be a life without freedom and personal liberty. To uphold the
dignity of the individual in all respects as ensured by the preamble of the
Constitution is the need of the hour. 'The Act' is a pre-constitutional
legislation and in the present time is antiquated and contrary to the mandate
underlying the Constitution. In the grounds allowed by the laws of dissolution
of marriage, there is a discriminatory treatment meted out to Christian spouses.
The discrimination is based solely on religion and hence is violative of Article
15.

   10. In the context of the aforesaid submissions advanced before us, it would
be useful to note the background under which 'the Act' was enacted.

   11. Christiansin India belong to three different traditions i.e. (i) Roman
Catholics, (ii) Protestants who are followers of Church of South India (CSI) and
Church of North India (CNI), and (iii) Syrian Christians, who are followers of
Greek Orthodox Churches. There is also a large population of Christians among
various tribes particularly in the North-East region. These tribes are granted
protection under the Constitution in respect of their culture, tradition,
customs and laws.

   12. Among the three traditions, only the Roman Catholic Church considers
marriage to be a sacrament and subscribes to the doctrine of indissolubility of
marriage. The other two Churches namely the Protestant Churches as well as
Orthodox Churches do not have doctrinaire objection to divorce. The early
Christian Church (the Eastern Orthodox Church of Syria, Greece etc.) permitted
divorce. The theory of indissolubility was evolved later. By 12th century, the
Roman Church for mulated the Canon law regulating marriages and divorce among
Christians in Europe. Under the Canon law, marriages were indissoluble. But
during the industrial era, the Protestant reformists broke away from the Roman
Catholic traditions. The French Revolutions led to the separation of State and
Church in France. In the 1800 the French Civil Code (Napoleon Code) changed
marriages from a sacramental status to dissoluble contract. The doctrine of
separation of State and Church and marriages as dissoluble contracts spread all
over Europe.

   13. Following this tradition, in 1857 the matrimonial jurisdiction was
transferred from the Ecclesiastical Courts (Canon Law Courts or Church Courts)
to Civil Courts (High Courts), and marriages were construed as dissoluble
contracts. Under the Matrimonial Causes Act, 1857 a limited ground of dissolving
marriages was provided under the statute. Adultery, coupled with other offences
like incest, bestiality, cruelty and desertion was made into grounds of divorce
for the first time under English law of marriage. Prior to this, a divorce could
only be obtained through an Act of Parliament, a procedure which was extremely
expensive rendering divorces outside the reach of commoners. Provisions of the
English statute i.e. Matrimonial Causes Act, 1857 were introduced in India
through the Indian Divorce Act, 1869. The grounds of divorce under the 1857 Act
were mechanically incorporated within the Indian Divorce Act. The Indian Divorce
Act was mainly meant for the use of British subjects (mainly Protestants) and
Europeans domiciled in India. The local Christians of Orthodox traditions were
governed by customary laws regarding marriage, divorce and succession.

   14. Under a subsequent English statute, the Matrimonial Causes Act of 1923,
adultery was made an independent ground of divorce. The ground of adultery was
not required to be coupled with any other ground. Under the Matrimonial Causes
Act of 1937 three new grounds of divorce Were added i.e. desertion, cruelly and
insanity. Each of these were independent grounds of divorce. Divorce Reform Act,
1969 was, thereafter, enacted which made irretrievable break down of marriage to
be sole ground of divorce. The aforesaid Act is replaced by Matrimonial Causes
Act, 1973. Section 1 of the Act has reiterated the ground of marriage having
broken down irretrievably as a ground for divorce. Section 1 of the Matrimonial
Causes Act, 1973, provides as under:

     "1. Divorce on break down of marriage.(I) Subject to section 3 below, a
petition for divorce may be presented to the Court by either party to a marriage
on the ground that the marriage has broken down irretrievably."

   15. While changes were effected in the aforesaid English statutes, no
corresponding amendments were, brought about under the Indian Divorce Act, 1869.
The grounds provided by the English statute i.e. the Matrimonial Causes Act,
1937 were incorporated into the Parsi Marriage and Divorce Act in 1937, the
Special Marriage Act of 1954 and Hindu Marriage Act, 1955. The grounds contained
in Section 10 of 'the Act', providing for dissolution of marriage, have remained
unchanged. Section 7 of 'the Act', however, provides for automatic inclusion of
all laws and procedures of English Matrimonial Courts into the Indian statute.
Section 7 provides as under:

     "7. Court to act on principles of English Divorce Court. -- Subject to the
provisions contained in this Act, the High Courts and District Courts shall, in
all suits and proceedings hereunder, act and give relief on principles and rules
which, in the opinion of the said Courts, are as nearly as may be conformable to
the principles and rules on which the Court for Divorce and Matrimonial Causes
in England, for the time being acts and gives relief.

     (Provided that nothing in this section shall deprive the said Courts of
jurisdiction in a case where the parties to a marriage professed the Christian
religion at the time of the occurrence of the facts on which the claim to relief
is founded.]: Even while the amendments to the aforesaid English enactments have
been made from time to time, having regard to the change in circumstances, the
Indian Divorce Act, 1869 has remained unchanged.

   16. Section 7 of 'the Act' has come up for consideration in various
decisions. The principle of incorporating the developments under English
Matrimonial Statutes through the scope of Section 7 was upheld by the decision
of the Full Bench of the Madras High Court in the case of, "Agnes Sumathi Ammal
v. D. Paul", AIR 1936. Madras 324. the Full Bench" of the Madras High Court
observed:

     "The Indian Courts have to keep pace with the practices in England and to
note changes that are made in the principles and rules of the English divorce
law from time to time since the English statute is the parent law."

   17. After independence, in 1955, the issue whether the statute of sovereign
Republic could be made subordinate to the laws of a foreign power, was examined
by the Madras High Court in the case of, "George Swamidoss Joseph v. Miss.
Harriet Sundari Edward', (FB). The Court held to the following effect:

     "Since Section 7 of IDA has been preserved by Adaptation of Laws Order,
1950, English law and practice could be applied to and should be applied. Courts
must follow law and practice in England."

   The above decision was, however, overruled in a later decision of the Madras
High Court in, "T.M. Bashiam v. M. Victor", (FB). the Court ruled, as follows
(Para 6):

     "Section 7 does not incorporate statute of some other country as part of
the law of the land. It merely makes a provision for conforming to the practice
and principle of matrimonial Courts in England in the matter of divorce or
dissolution of marriage subject to provisions and scheme of Indian Divorce Act."

   Without actually slating so in so many words, the above decision, in effect,
struck down Section 7. Any reform within Indian Divorce Act could be brought
about either through Legislative reform or judicial directions. Developments in
England cannot automatically be incorporated into 'the Act', Provisions of
Section 7 it was found, could not incorporate the later amendments carried out
from lime to time under English laws.

   18. The Law Commission has from time to lime taken various steps to bring
about changes in 'the Act'. In or around 1958-59 some private Bills were
introduced in parliament to reform provisions of the Act.' Consequently, the
Government referred the matter to the Law Commission and the Law Commission, in
turn, submitted its fifteenth report. In the recommendations of the Law
Commission, grounds for divorce were laid down, which include (i) adultery, (ii)
conversion, (iii) insanity, (iv) virulent and incurable leprosy, (v)
communicable venereal disease, (vi) not heard of for seven years, (vii) non-
consummation of marriage, (viii) non-compliance with a decree of restitution of
conjugal rights, (ix) desertion and (x) cruelty. Remedy of divorce by mutual
consent was not introduced at this point of time. Desertion and cruelly were
treated as independent grounds for claiming divorce.

   19. Representatives of the Roman Catholic Church submitted before the
Commission that the Roman Church is opposed to divorce and that Roman Catholics
should be exempt from these provisions but the Law Commission pointed out that
the provision for divorce exists since 1869 and the Church had not raised any
protest. Further, the proposed amendments were only an enabling legislation and
the same would not compel any Catholic to divorce. Law Commission further
pointed out that the proposed, provisions on divorce did not introduce any
remedy but merely widened the scope of the existing provisions. The Fifteenth
report of the Law Commission was submitted to the Ministry of Law. The Ministry
of law prepared a formal Bill for approval of the Government before introducing
it in the parliament. But, at this stage, the Government concluded that public
opinion should be again elicited and sent the Bill back to the Law Commission.
Law Commission re-examined some of the clauses in the proposed Bill and
submitted its twenty-second report to the Law Ministry. But there was no debate
in Parliament and the Bill was allowed to lapse.

   20. In 1983, the Law Commission, under the Chairmanship of Mr. Justice K. K.
Mathew, again took up the limited question of amending Section 10 of 'the Act'
based on letters sent by Christian women to the Commission detailing the cruelty
experienced by Christian women al the hands of their husbands, The Law
Commission, after considering various options, concluded that there is urgent
heed for amending Section 10 of the Act, so as to remove the alleged
discrimination from which Christian women suffered. The Law Commission regarded
such an amendment as a constitutional imperative. The Law Commission observed
"if the Parliament does not remove the discrimination, the Courts, in exercise
of their jurisdiction to remedy violations of fundamental rights, are bound some
day, to declare the section as void. "The Ninetieth Report of the Law Commission
was submitted to the Law Ministry in May, 1983. Despite the recommendations, the
Government did not introduce any legislation for amending Section 10 of the Act.

   21. Discriminatory aspects of Indian Divorce Act have been a matter of
consideration of several judicial pronouncements. Directions have been issued by
Courts to the legislature to bring about suitable amendments to the
discriminatory provisions. In "Solomon Devasahayam v. Chandirah Mary". (1968) 1
Mad LJ. 289, the Court held, as under:

     "The Indian Divorce Act, 1869 is wholly out of date. Under this Act, it is
enough if the husband proved adultery in order to enable him to get a divorce
from his wife. On the other hand, that was not enough for a wife to get a
divorce against her husband. Something more must be proved. .....It is high lime
that the Indian Divorce Act is brought in line with the Hindu Marriage Act, the
Parsi Marriage Act and the Special Marriage Act 1954. Indeed, the Special
Marriage Act even provides for divorce by consent of parlies"

   22. In "Swapna Ghosh v. Sadananda Ghosh, (SB), the Calcutta High Court held,
as under:

     "3. To start with, under Section 10 of the Act, while the husband is
entitled to a dissolution on the ground of the wife's adultery, the wife is not
so entitled unless she proves that the husband's adultery is incestuous or is
coupled with cruelty or bigamy or desertion. If the husband is entitled to
dissolution on the ground of adultery simpliciter on the part of the wife, but
the wife is not so entitled unless some other matrimonial fault is also found to
be superadded, then it is difficult id understand as to why this provision shall
not be held to be discriminatory on the ground of sex alone and thus to be ultra
vires Article 15 of the Constitution countermanding any discrimination on such
ground..... Then again, under the Divorce Act, Christian spouses are not
entitled to dissolution of marriage on the ground of cruelty or desertion, but
are only entitled to judicial separation under Section 22 which shall have the
effect of a divorce a mensa et thoro, that is separation only from "bed and
board", whereunder matrimonial bond remains undissolved. But spouses married
under the Special Marriage Act, Hindu, Buddhist, Sikh and Jain spouses governed
by the Hindu Marriage Act, 1955, Zoroastrian spouses governed by the Parsi
Marriage and Divorce Act, 1936. Muslim wives under the Dissolution of Muslim
Marriages Act, 1939 are entitled to dissolution of marriage, and not merely
judicial separation, on those, grounds. Are we then discriminating against
Christian spouses and that too, on the ground of their being Christian by
Religion and thus violating the mandate of Article 15 interdicting
discrimination on the ground of Religion only?"

     4. ..... My only endeavour is to draw the attention of our concerned
Legislature to this anachronistic incongruities and the provisions of Article 15
of the Constitution forbidding all discrimination on the ground of Religion or
Sex and. also to Article 44 staring at our face four decades with its solemn
directive to frame a Uniform Civil Code.

     10. .. ... I have no hesitation also in expressing that I equally feel the
need for an in-depth consideration by the Parliament or appropriate State
Legislature of the procedural provisions, of the Indian Divorce Act for
introduction of amending provisions..."

     11. .. ... Time has also come for a reappraisal and reconsideration of the
other anachronistic incongruities fundamental and discriminatory in nature
manifest not only in procedure but in substantial core provisions of such Act.
The fact whether wife should be discriminated against in the matter of getting
relief, only on the ground of sex, has been seriously called into question not
only in the arena of family laws but in other spheres as well concerning
avocation of life. The highest Court of the land has already raised and
considered such questions in the backdrop of protection of the rights enshrined
in the Constitution. It is Undoubtedly interesting and imperative, therefore, to
reconsider whether some of the salient features of the Indian Divorce Act, 1869
are violative of the equality clause prohibiting such discrimination on the
ground of sex as in Art. 15 of our Constitution,

     12. Apparently, some such questions, as it may appear to be unrelated to
the material issues involved in this case, but I think lime has come to have an
in-depth consideration of such associated questions by our legislatures to bring
appropriate changes in the old and existing laws keeping pace with the changing
needs of our society."

   23. In the case of "Shri Meenakashi Mills Ltd. Madurai v. A. V. Visvanantha
Sastri," , the Apex Court observed that --Article 14 guarantees to all persons
the right of equality before the law and equal protection of the laws within the
territory of India. This Article not only guarantees equal protection as regards
substantive laws but procedural laws also come within its ambit. The implication
of the Article is that alt litigants similarly situated are entitled to avail
themselves of the same procedural rights for relief, and for defence with like
protection and without discrimination.

   24. In the case of, "Ramish Francis Toppo v. Violet Francis Toppo", (SB), the
Court again expressed its opinion that-- "desertion of one spouse by the other,
is not, by itself, aground for dissolution of marriage under Section 10 of the
Divorce Act, but is only a ground of divorce a mensa et thoro, i.e., judicial
separation under Section 22. In fact, the Divorce Act in Section 10 provides for
divorce on one ground only, the ground of adultery, which again, in the case of
a wife seeking divorce, must be adultery coupled with some other lapses on the
part of the husband. Desertion, cruelty and the like are grounds for divorce,
and not merely judicial separation under all the matrimonial laws operating in
this country and in, Swapna Ghosh, (SB) (supra), 1 have raised the question as
to whether providing so many grounds of divorce to all the other communities
while restricting Christian divorce only to the ground of adultery amounts to
discriminating the Christian spouses on the ground of religion alone and I
indicated an affirmative answer....."

   25. In the case of " Mary Sonia Zachariah v. Union of India", (1990) 1 Ker LT
130, the Kerala High Court passed an interim order directing the Government of
India to take a decision within six months from the date of receipt of a copy of
its order on the recommendation of the 90th Report of Law Commission for making
amendments to Section 10 of the Indian Divorce Act as the Law Commission's
recommendations had been ignored.

   26. In the case of Shri Srinivasa Theatre v. Government of Tamil Nadu," , the
Supreme Court observed that, Article 14 of the Constitution enjoins upon the
Stale not to deny to any person "Equality before law" or 'the equal protection
of laws' within the territory of India. The two expressions do not mean the same
thing even if there may be much in common. The meaning of these expressions have
been found and determined having regard to the context and scheme of our
Constitution. It appears that the word "law" in the former expression is used in
a generic sense, a philosophical sense, whereas the word "laws" used in the
latter expressions denotes specific laws in force. Equality before law is a
dynamic concept having many facets. One facet, the most commonly acknowledged is
that there shall be no privileged person or class and that none shall be above
law. A facet which is of immediate relevance herein is the obligation upon the
State to bring about, through the machinery of law, a more equal society
envisaged by the preamble and Part IV of our Constitution. For equality before
law can be predicated meaningfully only in an equal society i.e., in a society
contemplated by Article 38 of the Constitution.

   27. In the case of, "Abedabi d/o Doud Shaikh v. Sikandar Akabar Mujawar, 1980
Bom CR 240 this Court observed, as under:

     "As the aforesaid provision (Section 125 Code of Criminal Procedure)
granted maintenance to all women irrespective of castes, including woman
belonging to the Christian faith, were given parity and same treatment. However,
the same parity has been denied to Christian woman for obtaining divorce. Even
though no reasonable grounds exists to deny the same or similar grounds
available to Hindu, Muslim and Parsi women are not given to the Christian
community."

   28. Need to introduce 'mutual consent' as a ground for divorce has been a
subject for consideration of various pronouncements. In the case of "Reynold
Rajamani v. Union of India, ", the Supreme Court field, as follows:

     "Per Pathak, J.

     "... A man and woman married under the Christian Marriage Act arc not
entitled to a decree of divorce by mutual consent..... 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, fostered by a recognition of
the need for the individual happiness of the adult parties directly involved.

     Per Chinnappa Reddy, J.

     "The history of matrimony in the past has been a movement from ritual and
sacrament to reality and contract .... But the World is still a man's world and
the laws arc man-made laws, very much so..... divorce by mutual consent should
be available to every married couple, whatever religion they may profess and
however, they were married. Let no law compel the union of man and woman who
have agreed on separation. If they desire to be two, why should the law insist
that they be one?

     .....But I have a qualification. The woman must be protected. Our society
still looks askance at a divorced woman. A woman divorcee is yet a suspect. Her
chances of survival arc diminished by the divorce. So, the law which grants the
decree for divorce must secure for her some measure of economic
independence..... If the divorce law is to be a real success, it should make
provision for the economic independence of the female spouse..... It is
necessary that the law should protect her interests even if she be an erring
spouse, lest she becomes destitute and a dead loss to society.

   29. In the case of "Jordan Deigdeh v. Chopra", , the Supreme Court suggested
complete reform of law of marriage and introduction of mutual consent and
irretrievable breakdown of marriage as grounds for divorce. The Court berated
the legislature and the State for not introducing changes into the Indian
Divorce Act, 1869 to bring it in tune with modern conditions. There is no point
or purpose to be served by the continuance of a marriage which has so competely
and signally broken down. We suggest that the lime has come for the intervention
of the legislature in these matters.

   30. Hence, it would appear that endeavour on the part of Courts, just as
those of the Law Commission and the Society in general and the Christian Society
in particular, have failed to stimulate the legislature in bringing about
amendments in 'the Act' so as to uplift the plight of the Christian woman which
is found demeaning in no small measure. Christian community has not logged
behind in making efforts to suggest suitable amendments to 'the Act'.
Recommendation made by the Law Commission in its 90th Report was initiated by a
letter written to the Law Commission by a woman setting out in detail the
various kinds of cruelly meted out to Christian women by their husbands. Various
letters written to the press and articles published in the press by Christians
regarding the need to bring about changes in the archaic taw during the years
1982-83 have been listed in the 90th Report of the Law Commission. This is an
indication of the desire for change within the community. In 1983 Mrs. Jyotsna
Chatterjee, Director of Joint Women's Programme (JWP), a Christian Women's
intuited, mobilised community support and a memorandum signed by around ten
thousand members was sent to the Law Ministry demanding changes in the personal
law. In February, 1986, representatives of various Christian women's
organisations presented a memorandum to the Prime Minister of India. There was a
broad consensus among the various denominations of Protestant churches but the
Roman Catholic Bishops objected to the grounds of divorce (including mutual
consent divorce) and suggested that the Roman Catholic community be exempted
from its application. Since this would result in a large segment of the
Christian community being excluded from its application, several Catholic
organisations expressed their support to the proposed amendment and campaigned
for a change of approach within the church leadership. Finally Catholic Bishops
Conference of India . (CBCI), the apex body of the Roman Catholic religious
hierarchy gave its assent to the Bill. A Committee was formed to finalise the
suggestions of various Christian organisations and churches under the broad
banner Ecumenical Committee for Changes in Christian Personal Law. After
arriving at a consensus draft Bill on Christian Personal Laws was submitted lo
the Prime Minister and the President along with supportive letters from
different churches and organisation. But despite this systematic and organised
community initiative the government did not introduce the Bill in Parliament.
The fact that government has not bothered to take any steps in the mailer
clearly indicates the lack of concern on the part of the government to reform
Christian Personal Law. The Christian Women, in the circumstances, are today in
an ironical situation. For the Catholic women the religious laws are the Canon
Laws which, on account of amendments carried out from time to time, offers more
liberal grounds of dissolving the marriage while the scope under the secular or
civil law is limited and has remained unchanged for well over a century. The
Protestant women are under a further constrain. While Protestant religion
universally supports the doctrine of divorce, the civil law constrains their
scope into narrow and out-dated provisions under a premise that it is the tenet
of their religion whether religion does not support such a tenet. The women who
are subjected to cruelly or have been deserted are compelled to remain in
marriage which is a marriage only in name on the ground that this is a tenet of
their religion, when their own religious tenets do not subscribe to this
doctrine. Such a provision of the civil law violates the Christian woman's
'right to life' a term which includes the 'right to life with dignity'. Though
amendments have been carried out in the Indian Penal Code by introducing Section
498-A, which makes cruelty to wives an offence, ironically the same is not made
a ground for divorce as far as Christian wives are concerned.

   31. Denial of right of divorce, in our view, also constitutes violation of
right to life under Article 21 of the Constitution. In recent years, various
judgments of the Supreme Court as also the High Courts have expanded the scope
of right to life under Article 21 and have held that violation of dignity and
right to full human developments could constitute violation of Article 21 of the
Constitution. In the case of, "Smt. Menka Gandhi v. Union of India, AIR-1973 SC
597, the Supreme Court held that the lest or yardstick to be applied for
determining whether a statute infringes a particular fundamental right is to see
what exactly is the direct and inevitable consequence or effect of the impugned
provision of law on the fundamental right alleged to have been violated. The
Supreme Court gave an expansive interpretation to the expressions life and
personal liberty under Article 21, which has been described as the heart of
fundamental rights in, "Unnikrishnan's case, . In the case of, "Pathuma v. State
of Kerala

   , the Supreme Court interpreted the constitutional provisions against the
social setting of the country so as to show a complete consciousness and deep
awareness of the growing requirements of the society, the increasing needs of
the nation, the burning problems of the day and the complex issues facing the
people which the legislature in its wisdom, through beneficial legislation seeks
to solve. The judicial approach should be dynamic rather than static, pragmatic
and not pedantic and elastic rather than rigid. It must take into consideration
the changing trends of economic thought, the temper of the times and the living
aspirations and feelings of the people. In the case of, "Francis, Colaria Mullin
v. Administrator, Union Territory of Delhi", AIR 1981 SC 746, the Supreme Court
observed that" . . .right to life includes the right to live with human dignity
and all that goes along with it, namely, the bare necessities of life such as
adequate nutrition, clothing and shelter over the head and facilities for
reading, writing and expressing oneself in diverse forms, freely moving about
and mixing and co-mingling with fellow human beings. In the case of, "Board of
Trustees v. Dilip", , the Supreme Court explained the meaning and contents of
word 'life' by slating. "The expression life does not merely connote animal
existence or a continued drudgery through life. The expression life has a much
wider meaning.

   32. In the case of, "State of Himachal Pradesh v. Umed Ram Sharma," , the
Supreme Court observed" . . . Every person is entitled to life as enjoined in
Art. 21 of the Constitution and in the facts of this case read in conjunction
with Art. 19(1)(d) of the Constitution and in the background of Art. 38(2) of
the Constitution every person has right under Art. 19(1)(d) to move freely
throughout the territory of India and he has also the right under Art. 21 to his
life and that right under Art. 21 embraces not only physical existence of life
but the quality of life and for residents of hilly areas, access to road is
access to life itself. These propositions are well settled. We accept the
proposition that there should be road for communication in reasonable conditions
in view of our constitutional imperatives and denial of that right would be
denial of the life, as understood to its richness and fullness by the ambit of
the constitution. To the residents of the hilly areas as far as feasible and
possible society has constitutional obligation to provide roads for
communication."

   33. In the case of, "Consumer Education & Research Centre v. Union of India",
the Supreme Court has observed, as under (at p. 938 of AIR):

     "The preamble and Article 38 of the Constitution of India the Supreme law
envisions social justice as its arch to ensure life to be meaningful and
liveable with human dignity. The constitution commands justice, liberty equality
and fraternity as supreme values to usher in the egalitarian social, economic
and political democracy. Social justice, equality and dignity of person are
corner stones of social democracy. The concept 'social justice' which the
Constitution of India engrafed consists of diverse principles essential for the
orderly growth and development of personality of every citizen. "Social justice
is thus an integral part of "justice in generic sense. Justice is the genus, of
which social justice is one of its species, Social justice is a dynamic device
to mitigate the sufferings of the poor, weak, Dalits, Tribals and deprived
sections of the society and to elevate them to the level of equality to live a
life with dignity of person. Social justice is not a simple or single idea of a
society but is an essential part of complex of social change to relieve the poor
etc. from handicaps, penury to ward off distress, and to make their life
liveable, for greater good of the society at large. In other words, the aim of
social justice is to attain substantial degree of social, economic and political
equality, which is the legitimate expectations. Social security just and humane
conditions of work and leisure to workman are part of this meaningful right to
life and to achieve, self expression of his personality and to enjoy the life
with dignity, the State should provide facilities and opportunities to them to
reach at least minimum standard of health, economic security and civilised
living while sharing according to the capacity, social and cultural heritage.

     (Para 20)

     The constitutional concern of social justice as an elastic continuous
process is to accord justice to all sections of the society by providing
facilities and opportunities to remove handicaps and disabilities with which the
poor etc are languishing to secure dignity of their person. The Constitution,
therefore, mandates the State to accord justice to all members of the society in
all facets of human activity. The concept of social justice imbeds equality to
flavour and enliven practical content of 'life' Social justice and equality arc
complementary to each other so that both should maintain their vitality. Rule of
law, therefore, is a potent instrument of social justice to bring about equality
in results."

   34. Moreover, we find that Government of India is a party to the Vienna
Declaration on the 'Elimination of All Forms of Discrimination against Women'.
The declaration was ratified by the United Nations Organisation of 18th
December, 1979 and by Government of India on 19th June, 1993 and acceded to on
8th August, 1993. Article 2 of the Declaration on the 'Elimination of All Forms
of Discrimination against Women' is as follows:

     "Article 2: Violence against women shall be understood to encompass, but
not be limited to the following :

     (a) Physical, sexual and psychological violence occurring the family,
including battering, sexual abuse of female children in the household, dowry
related violence, marital rape, female genital mutilation and other traditional
practices harmful to women ..."

   In the case of, "Valsamma Paul v. Cochin University", , the Supreme Court, in
its recent decision, has held, as under (at p. 1020 of AIR):

     "Human Rights are derived from the dignity and worth inherent in the human
person. Human rights and fundamental freedoms have been reiterated in the
Universal Declaration of Human Rights. Democracy, development and respect for
human rights and fundamental freedoms are inter dependent and have mutual
reinforcement. The human rights for women including girl child are, therefore,
inalienable, integral and individual part of the universal human rights. The
full development of personality and fundamental freedoms and equal participation
by women in political, social and economic and cultural life are concomitants
for national development, social and family stability and growth -- cultural,
social and economical. All forms of discrimination on grounds of gender is
violative of fundamental freedoms and human rights."

   35. Let us now examine the impugned provisions of Section 10 of the Indian
Divorce Act in the light of the observations contained in the various Judgments
cited above. We have already reproduced the relevant provisions of Section 10.
The first part of the Section is in respect of a right of a husband to obtain
divorce. All that is required of him is to prove that his wife has since the
solemnisation of the marriage been guilty of adultery. Hence, adultery by itself
is made a ground for divorce as far as husbands belonging to the Christian
community are concerned. Now let us see how the wife is placed vis-a-vis the
husband for claiming the very same relief, Provision, in this regard is made in
the later part of the Section. As far as the ground of adultery is concerned,
the same by itself is not sufficient to grant her a divorce. Adultery has to be
incestuous adultery. Adultery has to be accompanied with bigamy. Adultery has to
be accompanied by marriage with another woman. Adultery has to be coupled with
cruelty or with desertion without reasonable excuse and that too for a period of
two years or upwards. A question which arises for consideration is, whether
there are just and sufficient grounds to make the above classification which
places the Christian women to a disadvantageous position as compared to their
husbands. Are there any grounds at all which can justify the discrimination. Can
the discrimination be justified because the wives belong to the weaker sex. Can
it be justified in order to establish the superiority of husbands over the
wives. Is it merely in order to ensure that the wife is not treated equally with
the husband. In our judgment, the aforesaid discrimination which is meted out to
the wife, is wholly unreasonable. Article 14 of the Constitution ensures
equality before law. The same mandates that the State shall not deny to any
person equality before the law or equal protection of the laws within the
territory of India. Is this the equality that the State has been able to offer
to Christian wives as per the mandate contained in the above Article. Is this
the equal protection of taw which the State has envisaged and has conferred on
the Christian wives as compared to those conferred on Christian husbands. The
answer to these questions can be only one, 'No'.

   36. Article 15 of the Constitution mandates prohibition of discrimination on
grounds of religion, race, caste, sex or place of birth. The different treatment
which is accorded to Christian woman under Section 10 of the Act, as we see it,
is based merely on grounds of sex. Similarly, if one compares the provisions of
the other enactments on the subject of divorce, which are enumerated in the
foregoing paragraphs, it would be clear that Christian wives are discriminated
and have been treated differently as compared to wives who are governed by the
other enactments. The discrimination is, therefore, based merely on grounds of
religion. The afore said discrimination, in the circumstances, is violative
both, of Article 14 and of Article 15 of the Constitution. Similarly, if one has
regard to the decisions referred above in regard to Article 21, dealing with
protection of life and personal liberty, it would be clear that the position of
Christian women, has been rendered most demeaning as compared 10 Christian
husbands, as also wives governed by other enactments. The provisions contained
in Section 10 in the circumstances, are violative of Article 21 also.

   37. A question that now remains to be considered in the light of the
contention advanced by Mr. Shah appearing for the Union of India is, whether it
would be open to us to strike down the provision as being ultra vires Articles
14, 15 and 21 of the Constitution. It will further have to be considered,
whether the entire provisions of Section 10 deserve to be struck down or only
those portions of the provisions, which violate the aforesaid provisions of the
Constitution can be stuck down and the remainder can be continued to remain on
the statute, A reference to a recent decision of a Full Bench of the Kerala High
Court can now usefully be made. In the case of, "Ammini E. J. v. Union of
India," , a Full Bench of the Kerala High Court had an occasion to consider the
vires of Section 10 of 'the Act'. The Court, in para 12 of its judgment, has set
out the provisions of Section 10 of the Act and has, in para 13, noticed the
difference in the grounds which are made available to the Christian husbands and
wives to claim divorce. In para 14 it has noticed various other enactments
regulating marriages and divorce among people belonging to Religions other than
Christianity and also Christians outside India especially in England who were
also governed by an Act more or less similar to 'the Act' when 'the Act' was
passed or originally. In para 16 it has proceeded to observe, as under:

     "16. In England also the law regarding marriage and divorce has undergone
drastic changes. The Matrimonial Causes Act, 1973 which is now in force in
England has introduced a fundamental change in the law by making irretrievable
breakdown of marriage as the sole comprehensive ground for divorce and judicial
separation."

   In the succeeding paragraphs, the Court has proceeded to observe, as under :

     "17. The analysis made above would clearly show that Parliament has brought
out radical changes in the matrimonial legislations applicable to all other
religions by incorporating progressive and realistic grounds for divorce taking
into account the drastic changes in the nature of the family and the matrimonial
relationship in the modern set up. It is specially relevant to note in this case
that for Hindus who form the majority of the population in India also, marriage
was and still is a sacrament and was believed to be a union between a man and a
woman not only for their lifetime but also for life after death. But still, as
far as Hindus are concerned progressively legislation from time to time has
provided several grounds for divorce including cruelty and desertion. Even
consensual divorce is permitted. It is important to note that there is no severe
criticism that liberalisation shown in the matter of divorce has upset the Hindu
family set up perilously or prejudicially. In fact even now the criticism and
demand from the public is for more liberalisation by including irretrievable
breakdown of marriage as a comprehensive ground for divorce. In fact Government
of India has made a reference to the Law Commission of India seeking their
recommendations on the question of acceptable of irretrievable breakdown of
marriage as a ground for divorce among Hindus in response to demands and
suggestions from the public. In answer to the reference the Law Commission has
strongly recommended the acceptance of irretrievable breakdown of marriage as a
ground for divorce among Hindus and has proposed necessary amendments to the
Hindu Marriage Act in their 71st Report. In the 7lst Report, the Law Commission
has pointed out that the majority of the replies received to their questionnaire
have favoured the introduction of the new ground in the Hindu Marriage Act.
Analysing the answers received, the Law Commission has pointed out the following
aspects in support of their suggestion to accept the new ground.

     "We need not stand on an old divorce law which demands that man and woman
must be found innocent or guilty. It is desirable to get rid of the public
washing of dirty linen which takes place in long drawn-out cruelty cases or in
cases based on fault. If divorce is allowed to go through on the ground of
marriage break-down, such an unhappy spectacle will be avoided.

     One cannot say that it is an enhancement of the respect for marriage if
there are tens of thousands of men and women desperately anxious to regularise
their position in the community and they are unable to do so. People should be
able to marry again where they can obtain a death certificate in respect of a
marriage already long since dead."

     (Law Commission, 71st Report page 15)

     The observations of the Full Bench of the Delhi High Court in Ram Kali v.
Gogat Das, ILR 1 (1971) 1 Delhi 6 (FB), also was referred to as indicative of
modern trend in judicial thinking which is as follows:

     ....."It would not be practical and realistic approach indeed it would be
unreasonable and inhumane, to compel the parties to keep up the facade of
marriage even though the rift between them is complete and there are no
prospects of their even living together as husband and wife..."

     18. It is also useful to note that Law Commission had suggested
comprehensive amendment to the Act in the Bill titled "The Christian Marriage
and Matrimonial Causes Bill 1960" submitted along with its 15th Report whereby
both husband and wife were given the right to seek dissolution of marriagc on at
most all grounds mentioned in the Special Marriage Act including the ground of
adultery simpliciter, cruelty and desertion as per clause 30 of the Bill. As per
Clause 31, the Law Commission also suggested to make a provision to grant
divorce after a decree for judicial separation in case of non-resumption of co-
habitation. On receipt of the 15th Report, the Government finalised a Bill on
the lines suggested by the Law Commission and again referred the matter to the
Law Commission for their views after inviting opinion from the public.
Accordingly the Commission after ascertaining public opinion submitted the 22nd
Report reiterating its earlier stand. Though on receipt of the 22nd report, the
Christian Marriage and Matrimonial Causes Bill was introduced in the Parliament
the same lapsed on the dissolution of the parliament.

     19. It is relevant to note that the 15th and 22nd Reports were prepared
after collecting evidence from the dignitaries of the Christian Church,
representatives of the Christian Associations, Members of the Christian
community, Bar Association sand Judicial Officers in the country. The Reports
would reveal that there was a demand from the Christian community itself for
inclusion of progressive grounds for divorce like cruelty and desertion which
are available in almost all modern legislations on the subject. Since the law
continued as such, in 1983, the Law Commission of India headed by none other
than late Honourable Justice K. K. Mathewsuo motu took note of the urgent need
to amend the provisions contained in S. 10 of the Act and submitted its 90th
Report dated 17-5-1983 recommending urgent amendment of that Section. It is
appropriate to quote the reason given in the Report which is thus:

     "The reason why we attach the highest importance to amending Section 10 as
above may be stated. We regard such an amendment as a constitutional imperative,

     In our view, if the section is to stand the test of the constitutional
mandate of equality before the law and equal protection of the laws, in the
contest of avoiding discrimination between the sexes, then the amendment is
necessary. If Parliament does not remove the discrimination, the Courts, in
exercise of their jurisdiction to remedy violations of fundamental rights, are
bound, some day, to declare the section as invalid. . ."

     Though a decade and more have elapsed after the said Report, no effective
action seems to have been taken by the Parliament on the basis of the same to
amend S. 10 of the Act which is under challenge in these Original Petitions.

     20. The Courts in India including the Supreme Court have noted the
antiquated and anomalous nature of the Act and stressed the need for amendment
of the law in various judgments. In S. D. Selvaraj v. Mary (1968) 1 Mad LJ 289
Alagiriswamy, L J. (as he then was) has stressed the need for an immediate
amendment of the Act on the lines of the provisions contained in the Hindu
Marriage Act, Parsi Marriage Act and the Special Marriage Act. In T.M. Bashiam
v. M. Victor, a Special Bench of the same Court after referring

     to the obvervations of Alagiriswamy, J. in Selvaraj's case, (1968 (1) Mad
LJ 289), has made the following observations:

     . "It is only under this Act (4 of 1869) that the law remains where it was,
when this enactment was born, so that parties governed by this law are under the
grave disadvantage that, even if a husband deserts his wife for a considerable
period, that will be no ground for divorce; in our view, it is a genuine
hardship, and there is urgent need for re-examination of the provisions of Act 4
of (869, as the Act governs a large body of persons in this country to see that
its provisions are tendered humane and up-to-date...."

     Though as obiter A. M. Bhattacharjee, J. speaking for the special Bench in
Swapna Ghosh v Sadananda Ghosh, had the

     fallowing observations to make in regard to the constitutionality of the
provisions under consideration (at Pp. 3 and 4):

     ".....If the husband is entitled to dissolution on the ground of adultery
simpliciter on the part of the wife, but the wife is not so entitled unless some
other matrimonial fault is also found to be superadded, then it is difficult to
understand as to why this provision shall not be held to be discriminatory on
the ground of sex alone and thus to be ultra vires.

     Art. 15 of the Constitution countermanding any discrimination as such
ground.....

     Then again, under the Divorce Act, Christian spouses are not entitled
todissolution of marriage on the ground of cruelty or desertion, but are only
entitled to judicial separation under S. 22 which shall have the effect of a
divorce on a mensa et toro, that is separation only from "bed and board",
whereunder matrimonial bond remains undissolved. But spouses married under the
Special Marriage Act, Hindu, Buddhist, Sikh and Jain spouses governed by the
Hindu Marriage Act, 1955, Zoroastrian spouses governed by the Parsi Marriage and
Divorce Act, 1936, Muslim wives under the Muslim Marriages Act, 1939 are
entitled to dissolution of marriage, and not merely judicial separation, on
those grounds. Are we then discriminating against Christian spouses and that
too, on the ground of their being Christian by Religion and thus violating the
mandate of Art, 15 intradicting discrimination on the ground of Religion only?"

     In Raynold Rajamani v. Union of India, , the

     Supreme Court has observed that the history of matrimonial legislation has
been towards liberalisation on the grounds for divorce. Chinnappa Reddy, J. in a
separate judgment was forced to observe that "let no law compel the union of man
and woman who have agreed on separation". Again in Jorden Diengdeh v. S.
S.Chopra , the same learned Judge has made the following

     observations (at p. 940 of AIR):

     ". . . . Surely the time has now come for a complete reform of the law of
marriage and make a uniform law applicable to all people irrespective of
religion or caste. It appears to be necessary to introduce irretrievable
breakdown of marriage and mutual consent as grounds of divorce in all cases. The
case before us is an illustration of a case where the parties are bound together
by a marital tie which is better untied. There, is no point or purpose to be
served by the continuance of a marriage which has so completely and signally
broken down.

     21. Lastly our learned brother K.T. Thomas, J. has also made the following
observations and directions while passing an interim order in this case itself
(O.P. No. 5805 of 1988 :

     ". . . . After independence, the Indian Parliament brought about radical
changes in the marriage law applicable to Hindus, Parsis and even to foreigners
living in India by incorporating progressive and realistic grounds for divorce
in such enactments. But either for no reason or for reasons which are not easy
to comprehend, the law of marriage applicable to Christians remains unrealistic
and antiquated."

     After observing so, the learned Judge has directed the Union of India to
take a final decision regarding the recommendations of the Law Commission in its
90th Report already referred to within a period of 6 months from the date of
receipt of a copy of the said order. In spite of such positive direction no
final decision to amend the law except as already noted in para has been taken
by the Government of India, though the direction was given on 1 3- 12- 1989.

     21 A. Being a matter relating to dissolution of marriage among Christians
in India, it may be useful to understand how marriage is generally understood in
the Christian world. The classical definition of Christian marriage given by
Lord Stewell, the most eminent ecclesiastical Judges in England is thus:

     ". . . . .It is a contract according to the law of nature, antecedent to
civil institutions, which may take place to all intents and purposes wherever
two persons of different sexes engage, by mutual contracts, to live together. .
. A more casual commence, without the intention of cohabitation, and bringing up
of children, would not constitute marriage under any supposition. But when two
persons agree to have that commence for the procreation and bringing up of
children, and for such lasting cohabitation, that in a State of nature would be
a marriage . . . ."

     Dindo v. Be Tisario (1795) 1 Hag con 216 (230).

     The definition in fact brings out neatly the essential attributes of
marriage relationship,

     22. The following passage from Shefford on Marriage and Divorce (1841) page
3 is relevant.

     "Besides the procreation and education of children, marriage has for its
objects the mutual society, help and comforts, that one ought to have of the
other both in prosperity and adversity. Marriage is the most solemn engagement
which one human being can contract with another. It is a contract formed with a
view not only to the benefit of the parties themselves, but to the benefit of
the third parties, to the benefit of the common off springs and to the moral
order of civilised society."

     23. Now we may consider the questions raised in the above background. It is
evident from S. 10 of the Act that while the husband can seek dissolution of
marriage on the ground that his wife has been guilty of adultery simpliciter,
the wife has to prove that the husband is guilty of adultery which is (1)
incestuous, (2) coupled with cruelty which without adultery would have entitled
her to divorce a mensaetloro,(3) coupled with desertion without reasonable
excuse for 2 years or upwards, etc. Therefore, as far as the ground of adultery
is concerned husband is in a much favourable position when compared to the wife
since she has to prove adultery with one or other aggravating circumstances
indicated in the Section itself. After adverting specifically to the above
difference in the law P. B. Sawant, J. has held that "to that extent,
undoubtedly, it is the wife who is discriminated against." Evidently the above
discrimination is one purely based upon sex and nothing else. Such a
discrimination based purely on sex will be against the mandatory provisions in
Art. 18 of the Constitution of India and a denial of equality before law
guaranteed under Art. 14 of the Constitution of India.

     24. Learned counsel for the Central Government has however tried to support
the constitutionality of the provision relying strongly upon the reasoning
contained in Dwarke Das v. Nainan. . In that case Panchapakesa Iyyer, J. has
held that "since the husband even by committing' adultery," does not bear a
child as a result of such adultery and make it child of his wife to be
maintained by the wife," the wife by committing adultery "may bear a child as a
result of such adultery and 'the husband will have to treat it as his legitimate
child and will be liable to maintain that child under S. 488 Criminal Procedure
Code read with S. 112 of the Indian Evidence Act,'' and that "this very
"difference in the result of the adultery may form some ground" of justification
for this differentiation." We think that so long as the difference in the
aftereffect of adultery committed by the husband and wife pointed out that the
learned Judge as a justification for differential treatment is a difference
solely resulting from sex, and that cannot be treated as a valid justification
in the light of the provisions in Arts. 14 and 15 of the Constitution of India
as explained by the Supreme Court in C. B. Muthamma v. Union of India AIR 1979
SC 1868 and other cases.

     25. The more important challenge levelled against S. 10 of the Act was that
it is violative of the fundamental rights guaranteed under Arts. 14 and 21 of
the Constitution of India. It was strenuously contended by Smt. Indira Jaising
and Smt. Lekha Suresh, learned counsel for the petitioners, that Section 10 of
the Act in so far as it obliges a Christian wife to prove adultery in addition
to cruelty as without adultery would have entitled her to a divorce mensa el
toro or desertion without reasonable excuse for two years orupwards is totally
arbitrary and violative of the right to equality under Art. 14 and right to live
with human dignity and personal liberty under Art. 21 of the Constitution of
India. There was also an alternative contention that in the matter of
dissolution of marriage Christian spouses are discriminated against in as much
as S. 10 of the Act does not provide for dissolution of marriage on the ground
of cruelly and desertion which are independent grounds for dissolution of
marriage for couples belonging to all other religions in India under the
respective enactments governing them. The discrimination so made is solely based
on religion and as such violative of Art. 15 of the Constitution of India.

     26. Dealing with the main contention, detailed submissions have been made
by the learned counsel justifying the same. The quintessence of such submissions
is that when a marriage is irretrievably broken down as a result of desertion
and/or cruelly meted out to a wife by her husband and the wife wants to get
dissolution of her marriage, she must be able to get a dissolution on proof of
desertion and/or cruelty under the relevant law relating to dissolution of
marriage. There may not be any purpose of justification in keeping alive legally
a marriage which is for all intents and purposes ceased to exist in reality. One
must be able to put an end to the relationship entered into on the basis of
mutual consent when such consent is withdrawn by both parties or at least one
among them. dC jure continuance of such broken marriage may not be in the
interest of either of the parties or to the society at large. It will only give
rise to perpetual bickerings, quarrels and endless litigations ruinous to the
parties and the society as a whole. There is no public purpose or individual
benefit to be achieved by denying a right to dissolution of marriage in such
cases and compelling the couples to live perpetually bound by a relationship
which has ceased to exist de facto, If a right of dissolution of marriage is not
available to a wife placed in such circumstances she will be compelled to live a
subhuman life in perpetual bondage to a person who has wilfully deserted her and
treated her cruelly making her married life miserable and unbearable. To be
compelled to live at least in name as a wife of a person who has deserted her,
cruelly treated her, who has no love and regard to her and whom she hates and
considers as the wrecker of her married life will be to live as a slave without
dignity and personal liberty guaranteed to every person under Art. 21 of the
Constitution of India. It will be a life against her will imposed by an
authoritarian law. It will be an oppressed life. She will not be able to choose
another partner in fife and to enjoy the pleasures of the marital life once
again like other women similarly situated and belonging to other religions who
are entitled to get divorce on the ground of desertion and/or cruelty without
proving adultery. In the absence of a provision in the Act recognising desertion
and cruelty as independent grounds for dissolution of marriage a Christian wife
who is deserted or cruelly treated by her husband is bound to continue that
relationship till her death at least in name and will not be able to put an end
to it. The legal effect of the provisions in S. 10 of the Act is to deny the
Christian woman a right to gel dissolution of marriage on grounds of desertion
and cruelly even when the marital relationship has broken irretrievably as a
result of desertion and cruelty shown by her husband. Such a law which
disentitles a married Christian woman to get divorce even when her marriage is
irretrievably broken down as a result of desertion and cruelty and compels her
to continue her life though in name alone as the wife of a person whom she hates
and considers as the wrecker of her married life can only be treated as highly
unjust, unfair and oppressive and as such arbitrary and violative of the rights
guaranteed under Arts. 14 and 21 of the Constitution of India. Such a law is
liable to be declared as void in the light of Art. 13 of the Constitution of
India. Being a provision granting divorce, a declaration that the entire
provision is void under Art. 13 may go against the Christian woman themselves.
Such a result is to be avoided by striking down the offending portions of the
provision alone which makes it obligatory on the part of the Christian women to
provide adultery along with desertion and cruelly, severing the same from the
rest of the provisions which can stand by itself as valid provision providing
'desertion' and 'cruelty' as independent grounds for dissolution of marriage.
When a provision of law is bad only in part and offending part can be separated
from the rest of the provision, it will always be justifiable to strike down the
offending portion of the provision alone leaving the remaining portion as valid
to avoid unjust results which may follow from a striking down of the entire
provision of law."

     It would, thus, appear that the Full Bench of the Kerala High Court, on a
consideration of several decisions of the Supreme Court and High Courts, has
found that the provisions of Section 10 of 'the Act' arc ultra vires. In our
judgment, the reasons advanced for holding the provisions ultra vires is fully
justified and we have no hesitation in adopting the same.

   38. Mr. Shah, the learned counsel for the Union of India has, however,
strenuously urged that it would he impermissible for us to do what has been done
by the Kerala High Court as the same will have effect of recodifying the
provision which is the exclusive domain of the Parliament. Contention of Mr.
Shah is similar to the contention raised before the Full Bench of the Kerala
High Court to be found in para 39 of the judgment, which reads:

     "39. Another contention of the learned Central Govt. Pleader was that the
impugned provisions in Section 10 are codified form of personal laws of
Christians in India founded on the teachings of Christ and his disciples. Such
personal laws may not come within the purivew of Art. 13 of the Constitution of
India and such cannot be declared as ultra vires the Constitution. Learned
Counsel has in this connection relied upon the decision in the State of Bombay
v. Nrasu Appa Mali, , where it has been held that

     personal laws are not covered by Art. 13 of the Constitution of India. We
do not find any merit in the above contention as we are in this case directly
concerned with a particular provision in an enactment passed by the legislature
unlike in the case which came up for consideration in Narasu Appa Mali's case.
So long as the infringed provisions arc part of an Act, it must pass the best of
constitutionality even if the provision is based upon religious principles. We
would accordingly repel the said contention also."

     "40. Having thus found that the impugned provisions are violative of the
provisions contained in Arts. 14, 15, and 21 of the Constitution of India, the
next question to be considered is about the sustainability of the prayers made
in the Original Petitions.

     41. In the light of our findings that the impugned provisions are violative
of the provisions in Arts. 14, 15 and 21 of the Constitution of India, normally
the above provisions as a whole are liable to be declared as null and void in
terms of Art. 13 of the Constitution of India. However, as contended by the
petitioners, a declaration to that effect and striking down of the entire
provisions will really go against the interest of the petitioners and other
similarly situated Christian wives inasmuch as they are provisions providing
grounds for dissolution however harsh and unreasonable they may be. To avoid
such a result, the learned counsel for the petitioner as already indicated has
prayed that the offending portions of the impugned provisions alone be declared
severable and liable to be struck down as ultra vires leaving, the remaining
portion as a valid provision allowing dissolution of marriage on grounds of
adultery, desertion and cruelty. In this connection, strong reliance was placed
on the decision in D. S. Nakara v. Union of India to contend that such a

     course is liable to be adopted in this case having due regard to ultra
vires nature of the impugned provisions which works out great hardship on
Christian wives.

     42. Elucidating the point further, the learned counsel has submitted that
the words and phrases 'incestuous' and 'adultery coupled with' used in the
impugned provisions in Section 10 are severable and liable to be struck down as
ultra vires Arts. 14, 15 and 21 of the Constitution of India. We may once again
quote the relevant provision underlying the impugned portions:

     "10. When husband may petition for dissolution -

     .....

     When wife may petition for dissolution --Any wife may present a petition to
the District Court, or to the High Court, praying that her marriage may be
dissolved on the ground that, since the solemnization thereof, her husband, has
exchanged his profession of Christianity for the profession of some other
religion, and gone through a form of marriage with another woman;

     or has been guilty of incestuous adultery....

     or of adultery coupled with such cruelty as without adultery would have
entitled to her to a divorce a mensa et toro, or of adultery coupled with
desertion, without reasonable excuse, for two years or upwards."

     It was submitted that if the underlined words are excluded, the remaining
portions of the Section would in terms provide adultery, desertion and cruelty
as indicated therein as independent grounds for dissolution of marriage for
Christian wives whose marriage has irreversibly broken down as a result of
desertion, cruelty and adultery committed by the husband. By striking down the
underlined portions as ultra vires, the remaining portion can by itself remain
as constitutionally valid provision along with 'the rest of the provisions in
Section 10 of the Act. The offending portion can easily be severed and cannot be
treated as inextricably connected with the remaining portion.

     43. Section 10 being the only provision allowing dissolution of marriage
among Christians governed by the Act, striking down of the provisions as a whole
should be avoided as far as possible. As such, we should see whether the
offending portion to the impugned provisions are severable and if so whether the
(remaining provisions) can be allowed to remain as provisions valid in law.
Having thus considered the rival contentions, we find that the underlined
portions are the offending portions which makes the impugned provisions ultra
vires and if such portions are severed and quashed as ultra vires, the remaining
portions of the provisions can validly stand along with the other provisions in
Section 10. So modified Section 10 would permit Christian wives to seek
dissolution of their marriages on the grounds of adultery, desertion and cruelty
also without the necessity of proving adultery. In that event, the remaining
provisions will be more or less similar to the provisions contained in all other
enactments in force regulating dissolution of marriages among people belonging
to other religions and also the Special Marriage Act. If such a course is
adopted, the provisions can be made constitutionally valid and retainable in the
modified form to serve the purpose for which it was enacted in a better way
avoiding the striking down of the entire provision which would have created a
hiatus as feared by the Law Commission of India in its 90th report.

     44. The question then to be considered is whether the offending portions
are severable or not. The learned Central Govt. Pleader has strongly contended
that it is not a fit case where the principle of severability can be applied
justifiably. Learned Counsel has in this connection strongly relied upon the
tests laid down by the Supreme Court in (R.M.D.C. v. Union of India, , as the

     tests to be applied while deciding the question. In support of his
contention, the learned Govt. Pleader has made various submissions to which we
have already made a brief reference in paragraph 9 of this judgment. In fact,
such submissions were made mainly relying upon the tests indicated in R.M.D.C.'s
ease. Having bestowed our anxious consideration on the question in all relevant
aspects, bearing in mind the tests indicated in R.M.D.C.'s case, we are of the
firm view that none of the objections raised by the learned Central Govt.
Pleader can be accepted as valid and sustainable in law. In our view, severance
of the offending portions would neither make the remaining provisions unworkable
nor will it upset the scheme of the provisions in Section 10 to such an extent
as to make the modified provisions totally unjust of unreasonable as contended
by the learned Central Govt. Counsel. We cannot also accept the contention that
the only approach available for us in the matter is "either make it or leave
it." That is a contention which was specifically repelled by the Supreme Court
in Nakara's case, . Supreme Court has held in Nakara's case that the correct
approach is not neither take it or leave it." but try to remove the
arbitrariness or unconstitutionality of a provision of law if it can be done by
severing the offending portion and saving the beneficial, portion. Going by the
above principle we arc of the view that It is a fit case where we would be
justified in severing and quashing the offending portion which makes the
provision contained in Section to of the Act arbitrary and violative of the
fundamental rights, to save the beneficial portion of it. Though such a course
of action will certainly result in modification of the provisions to some extent
or removing the limitations and expanding the scope of the provision as it was
enacted, we find that we are justified in doing so in an attempt to avoid the
striking down of the entire provisions of Section 10. The contention such a
course if adopted would amount to introduction of new grounds substantially
different from the existing grounds cannot also be treated as a reason
sufficient to dissuade us from adopting such a course for the purpose of giving
necessary reliefs to the petitioner and other similarly situated Christian wives
who seek dissolution of their marriage on grounds of adultery, desertion and
cruelly. We may in this connections pertinently point out that such consequences
are bound to happen and cannot be avoided when an offending portion is severed
and quashed for making the remaining portion constitutionally valid and
operative. In fact, such was the consequence in Nakara's case, , where the
principle was applied. By severing the eligibility qualification contained in
the concerned Rules, the benefit of enhanced pension was made available even to
persons to whom the legislature never wanted to confer such benefits. In
R.M.D.C.'s case, , also

     the scheme intended was to apply the provisions of the Act and the relevant
Rules to all competitions without any exception. However, the Supreme Court has
upheld the provisions of the Act only in regard to competition depending upon
mere chance applying the principle of severability. It cannot be said that the
Supreme Court has not interfered with the scheme of the provisions or its
contents at all in Nakara and R.M.D.C. cases. The fact that the impugned
provisions after modification would enable the wives to gel dissolution of their
marriage on grounds of cruelty and desertion also whereas the husband can get
dissolution only on ground of adultery cannot be a ground for holding that the
provisions should not be interfered with. Such a provision which confers on the
wife certain additional grounds for dissolution of marriage not available to
husband can very well be justified in the light of the provisions contained in
Art 15(3) of the Constitution even if the constitutionality of the same is
challenged by the husband. Such a provision can legitimately be considered even
as a provision made specially for the benefit of women.

     45. Applying the tests indicated in R.M.D.C.'s case, , if we are now, to
ask ourselves the question as

     Venkataramd Iyyer, J. has done in that case, would Parliament have enacted
the law in question if it had known that it would fail as, regards the offending
portions, there can be no doubt, as to what our answer would be. We do not also
think that expunging of the offending portions would affect either the texture
or colour of the Act in any substantial manner inasmuch as Section 10 is a
provision which provides grounds for dissolution of marriages among Christians
and it will continue to be so even after expunging of the offending portions.
There may not also be any propriety of touching up or re-writing the law before
the remaining portion could be applied as valid law The remaining portion can
form a code complete in themselves alongwith the other provisions in S. 10, as a
provision providing grounds for dissolution of marriages among Christians. Thus
the conclusion is inescapable that the offending portions are severable.

     46. For all the above reasons we would hold that the offending portions of
the provisions as already indicated are severable and they are liable to be
quashed as ultra vires. We would further hold that the remaining portions of the
provisions can remain as valid provisions allowing dissolution of marriage on
grounds of adultery simpliciters and desertion and/or cruelty independent of
adultery. Adoption of such a course, in our view, would help to avoid striking
down of the entire provisions in Section 10 of the Act and to grant necessary
reliefs to the petitioners and similarly situated Christian wives seeking
dissolution of their marriage which has for all intents and purposes ceased to
exist in reality."

     "47. We would accordingly severe and quash the words "incestuous" and
"adultery coupled with" from the provisions in Section 10 of the Act and would
declare that Section 10 will remain hereafter operative without the above
words;"

   39. Having considered all the pros and cons, we are inclined to fully endorse
the view expressed by the Kerala High Court and hold that only those portions of
Section 10 that offend Articles 14, 15 and 21 of the Constitution are liable to
be severed and quashed and the remainder of the provisions are liable to be
retained on the statute. So done, Section 10 would now read as follows:-

     "10. When husband may petition for dissolution. --Any husband may present a
petition to the District Court or to the High Court, praying that his marriage
may be dissolved on the ground that his wife has, since the solemnization
thereof, been guilty of adultery.

     When wife may petition for dissolution.--Any wife may present a petition to
the District Court or to the High Court, praying that her marriage may be
dissolved on the ground that, since the solemnization thereof, her husband has
exchanged his profession of Christianity for the profession of sonic other
religion, and gone through a form of marriage with another woman;

     or has been guilty of adultery,

     or of bigamy

     or of marriage with another woman or of rape or sodomy or bestiality.

     or of cruelty

     or of desertion, without reasonable excuse, for two years or upwards."

   40. It is, however, contended by Mr. Shah that the above provision would
grant to the wife grounds to claim divorce which are not available to the
husband. Whereas the wife would been entitled to claim divorce on the ground of
change of religion, bigamy, rape, sodomy, bestiality, cruelty or desertion, the
very same grounds are not available to the husband. The provisions would,
therefore, have the same vice as the vice we have found for striking down the
provision. In this connection a reference, can usefully be made to a decision of
the Supreme Court in the case of, Anil Kumar Mahsi v. Union of India,". In that
case, a Christian husband had

   impugned the very same provision of Section 10 as being discriminatory
against the husband and, therefore, violative of Article 14 of the Constitution.
The Supreme Court after setting out two provisions of Section 10 observed, as
under:

     ". . .It will be apparent from the aforesaid provisions that while the
husband can seek dissolution of marriage on the ground that his wife has been
guilty of adultery simpliciter, the wife has to prove that the husband has been
guilty of adultery which is (i) incestuous, (ii) coupled with bigamy, (iii)
coupled with marriage with another woman, (iv) coupled with cruelty which
without adultery would have entitled her to divorce a mensa et toro,(v) coupled
with desertion without reasonable excuse for two years or upwards. It is,
therefore, clear that as far as the ground of adultery is concerned, it is the
husband who is in a favourable position as against the wife, since it is not
enough for the wife to prove adultery simpliciter on the part of her husband. To
that extent, undoubtedly, it is the wife who is discriminated. As regards the
other grounds which are available to the wife to claim dissolution of the
marriage, which grounds are impliedly not available to the husband, the same
areas follows: --

     (a) that the husband has exchanged his profession of Christianity for the
profession of some other religion and gone through a form of marriage with
another woman, and (b) that the husband is guilty of rape, sodomy or bestiality.
It will be evident from these two grounds that a mere exchange of the profession
of Christianity for the profession of another religion on the part of the
husband is not enough. The wife has also to prove that the husband has married
another woman. Since, however the husband can seek dissolution of the marriage
only on the ground of adultery, the husband is not at a disadvantage as against
his wife because a mere marriage with another man whether after exchanging the
profession of religion or not, would give a ground to the husband to seek
dissolution of marriage. It would thus be seen that even as far as this ground
is concerned, it is the wife who is at a disadvantage.

     5. As regards the only other grounds unavailable to the husband, they arc
of rape, sodomy or bestiality. Although the modern usage of the word 'rape'
extends also to the forcible sexual intercourse by a woman with a man, the
dictionary meaning of the said word as well as the offence of rape as defined in
the Indian Penal Code speak only of forcible sexual intercourse by a man with a
woman. We have, therefore, to accept the latter meaning of the said word while
construing the provisions of the Act which is one of the vintage enactments on
our statute book. Hence, it cannot be said that there is any discrimination
between husband and wife because the ground of rape is not available to the
husband for dissolving the marriage.

     6. As regards sodomy. the word is defined in Black's Law Dictionary (5th
Edn.) to mean:

     "A carnal copulation by human beings with each other against nature, or
with a beast, State v. Young, 140 Or 228, 13 P 2d 604, 607. Sodomyis oral or
anal copulation between persons who are not husband and wife or between
consenting adult members of the opposite sex, or between a person and an animal,
or coitus with an animal Kansas Criminal Code."

     Shorter Oxford English Dictionary defines the word 'sodomy' to mean "An
unnatural form of sexual intercourse, esp. that of one male with another."
Section 377, I.P.C. defines "unnatural offences", as follows:

     "377. Unnatural offences. -- Whoever voluntrily has carnal intercourse
against the order of nature with any man, woman or animal, shall be punished
with imprisonment for life, or with imprisonment of cither description for a
term which may extend to ten years, and shall also be liable to fine.

     Explanation.

     Penetration is sufficient to constitute the carnal intercourse necessary to
the of fence described in this section.''

     7. It can, therefore, be said that a woman can also be guilty of sodomy. So
will be the position in the case of the offence of bestiality. The
discrimination, therefore, can be alleged by the husband only on the basis that
these two grounds, viz. sodomy and bestiality, are not available to him for
claiming dissolution of his marriage whereas the same arc available to the wife
for the purpose.

     8. 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 "rounds 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
arc discriminatory as against the husband,

     9. 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 Cosntitution.

     10. What is further, the individuals not willing 10 submit to the Indian
Divorce Act or any other personal law are not obliged to marry exclusively under
that law. They have the freedom to marry under the Special Marriage Act. 1954.
Having however, married under the Act and accepted its discipline, they cannot
be heard to complain of its rigours, if any,"

     (Underlining ours)

     It would, thus, appear that the Supreme Court has taken into consideration
the mascularly 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, and has found that the legislature can hardly be
faulted for affording additional grounds to the wife for claiming divorce that
are not made available to the husband. In any event, we are in the present
proceedings concerned with a challenge raised by the wives. Incase a challenge
is, at a later stage raised by husbands, the same will be considered and dealt
with separately.

   41. Mr. Shah has next contended that enactments pertaining to personal law
involve issues of Slate policies and Courts should not dabble with them. In this
context Mr. Shah has placed reliance on a decision of the Supreme Court in the
case of "Ahmedabad Women Action Group (AWAG) v. Union of India". . In this case,
challenge was raised to various enactments relating to personal law of Hindus,
Muslims and Christians as being ultra vires the Constitution. Supreme Court did
not entertain the challenge as the issues raised involved issues of State
policies with which the Court will not ordinarily have any concern. It was
observed that, when similar attempts were made on earlier occasions the Supreme
Court had held that the remedy lies somewhere else and not by knocking at the
doors of the Courts. Placing reliance on the above decision. Mr. Shah contended
that laws enacted by the Parliament, which related to personal laws of the
parties, lie in the exclusive domain of the Parliament. It will not he open to
Courts, by a comparison of the provisions to be found in different enactments,
to hold one enactment to be just or unjust as compared to other enactments and
thereby proceed to strike clown a less favourable enactment.

   42. Mr. Shah next contended that, once the vires of a particular provision of
law is upheld the same cannot be once again challenged by setting up fresh
grounds. In this context, he has placed reliance on a decision of the Supreme
Court in the case of "Delh Clothi, and General Mills Co. Ltd. v. Shambhu Nath
Mukherji, , where, it is observed, as under (Para 11 ) :

     "..... If this Court held S. 10 (of the Industrial Disputes Act) as intra
vires and repelled the objection under An. 14 of the Constitution it would not
be permissible to raise the question again by submitting that a new ground could
he raised to sustain the objection. It is certainly easy to discover fresh
grounds of attack to sustain the same objection, but that cannot be permitted
once the law has been laid down by this Court holding that S. 10 of the Act does
not violate Art. 14 of the Constitution."

   43. Mr. Shah then placed reliance on a case of T. M. Bashiam v. M. Victor. .
where a Full Bench of the Madras High Court has summarised a contention raised
before it, in the following terms :

     "7. In this context, learned Counsel for the petitioner (the wife) has
raised an argument that Section 17 itself may be taken as violating An. 14 of
the Constitution, because it provides for the reference 10 this Court to be
heard by a Bench of three Judges of this Court, for confirmation of a decree
nisi for dissolution of marriage grunted by any District Court whereas, with
regard to such cases arising under the original civil jurisdiction of this
Court, this Court itself exercises that jurisdiction as the High Court, and the
proceeding is a petition before a learned single Judge of this Court on the
Original Side. The argument appears to be wholly lacking in validity, F'irstly.
It is not an unreasonable differentiation: nor one unrelated to a very clear
principle of distinction, that the jurisdiction of a superior tribunal attracts
cases arising within its territory, while inferior tribunals have to deal with
cases in their similar jurisdiction. If such a principle or scheme were to be
held as offending Art. 14, the entire hierarchy of Courts, and the different
provisions for the institution and disposal of civil matters in these Courts
will have to be abolished."

     In the aforesaid case, the Full Bench has proceeded to hold that Section 17
of the Indian Divorce Act is not discriminatory".

   44. Mr. Shah next relied on a decision of this Court in the case of "Slate of
Bombay v. Narasu Appa Mali, . This Court in para 12 of the Judgment, has
reproduced the contentions in regard to validity of Bombay Prevention of Hindu
Bigamous Marriages Act, 1946 raised before it, as follows :

     "(12) It has then been argued with great ingenuity by Mr. Shah that by
reason of the Constitution the Muslim personal law which permits polygamy has
become void and, therefore, the Act has discriminated in applying to Hindus.
Article 13(1) provides that all laws in force in the territory of India
immediately before the commencement of this Constitution, insofar as they are
inconsistent with the provisions of Part III, shall, to the extent of such
inconsistency, be void: and what is contended is that the institution of
polygamy offends under Art. 15(1) inasmuch as a Muslim male is permitted to have
more than one wife whereas a Muslim woman is restricted to one husband. It is,
therefore, submitted that the very institution of polygamy discriminates against
women only on the ground of sex."

   In para 30 of Die Judgment, this Court has proceeded to hold, as under :

     "(30) But it is argued that even as to this social reform, the Stale
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 he a matter for
the Legislature to consider. It is now well settled that the equality before the
law which is guaranteed by Art. 14 is not offended by the impugned Act is the
classification which the Act makes is based on reasonable and rational
considerations. It is not obligatory for the Slate Legislature always and in
every case to provide for social welfare and reform by one step. So long as the
Stale Legislature 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 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 of contract. If the Slate
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 Art. 14. In my opinion,
therefore, the argument that Art. 14 is violated by the impugned Act must fail."

   45. Mr. Shah next placed reliance on the case of "Reynold Rajamanj v. Union
of India, . where the Supreme Court, in para (i has observed, as under ;

     "6. ..... However, whethera 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."

   The Court, thereafter, in para 10 of the Judgment, has proceeded to observe,
as under :

     "10. Learned Counsel for the appellants then points out that a Christian
marriage can be registered under the Special Marriage Act. 1954 and that there
is no reason why a marriage registered under the Indian Christian Marriage Act
should not enjoy an advantage which is available to a marriage registered under
the Special Marriage Act. Reliance is placed on the constitutional prohibit ion
against discrimination embodied in Article 14 of the Constitution. Assuming that
the marriage in this case could have been registered under the Special Marriage
Act. 1954, inasmuch as it was solemnised in 1967 it was open to the parties to
avail of that Act instead of having resort to the Indian Christian Marriage Act,
1872. In the circumstances, it is not open to the appellants to complain of the
disadvantage now suffered by them."

   Placing reliance on the above observations. Mr. Shah has contended that
provisions to be found in Section 10 of 'the Act' are a result of a legislation
enacted by the Parliament. Whether they are onerous otherwise is for the
Parliament and the Courts cannot extend or enlarge on the enactment passed by
the Parliament by adding to or subtracting from the provisions of the statute.
He has further contended that the plaintiffs, if they desired to take advantage
of the provisions contained in the Special Marriage Act, it was open to them to
have got their marriages registered under the Act. They would have, in that
case, been entitled to take advantage of that Act. Not having done so, they
cannot be heard to complain as they have chosen to be governed by the Indian
Divorce Act.

   46. Mr. Shah next placed reliance on the case of "Ms. Jorden Doemgde v. S. S.
Chopra", . where the Supreme Court has observed, at page 938, as under :

     "3. ..... If the provisions of the Hindu Marriage Act are compared with the
provisions of the Indian Divorce Act. it will be seen that apart from the total
lack of uniformity of grounds on which decrees of nullity of marriage, divorce
or judicial separation may be obtained under the two Acts, the Hindu Marriage
Act contains a special provision for a joint application by the husband and wife
for the grant of a decree of divorce by mutual consent whereas the Indian
Divorce Act contains no similar provision. Another very important difference
between the two is that under the Hindu Marriage Act, a decree for judicial
separation may be followed by a decree for the dissolution of marriage on the
lapse of one year or upwards from the date of the passing of a decree for
judicial separation, if meanwhile there has been no resumption of cohabitation.
There is no corresponding provision under the Indian Divorce Act and a person
obtaining a decree for judicial separation will have to remain content with that
decree and cannot seek to follow it up with a decree of divorce, after the lapse
of any period of lime. We may also notice that irretrievable break-down of
marriage is yet no ground for dissolution of marriage under the Hindu Marriage
Act also though the principle appears to have been recognised in Sec. 13(1 A)
and Sec. I3(B)."

   In para 7 of its Judgment the Supreme Court has further observed, as under :

     "7. It is thus seen that the law relating to judicial separation, divorce
and nullity of marriage is far, far from uniform. Surely, the time has now come
for a complete reform of the law of marriage and make a uniform law applicable
to all people irrespective of religion or caste. It appears to he necessary to
introduce irretrievable break-down of marriage and mutual consent as grounds of
divorce in all cases. The case before us is an illustration of a ease where the
parties are bound together by a marital tie which is better untied. There is no
point or purpose to be served by the continuance of a marriage which has so
completely and signally broken down. We suggest that the lime has come for the
intervention of the legislature in these matters to provide for a uniform code
of marriage and divorce and to provide by law for a way out of the unhappy
situations in which couples like the present have found themselves. We direct
that a copy of this order may be forwarded to the Ministry of Law and Justice
for such action as they may deem fit to take...."

   47. Mr. Shall next relied on the case of Union, of India v. Deoki Nandan
Aggarwal, AIR 1992 SC 96, where the Supreme Court has observed, as under :

     " 14. ..... It is not the duty of the Court either to enlarge the scope of
the legislation or the intention of the legislature when the language of the
provision is plain and unambiguous. The Court cannot rewrite, recast or reframe
the legislation for the very good reason that it has no power to legislate. The
power to legislate has not been conferred on the courts. The Court cannot add
words to a statute or read words into it which are not there. Assuming there is
a defect or an omission in the words used by the legislature the Court could not
go to its aid to correct or make up the deficiency. Courts shall decide what the
law is and not what it should be. The Court of course adopts a construction
which will carry out the obvious intention of the legislature but could not
legislate itself. But to invoke judicial activism to set at naught legislative
judgment is subversive of the constitutional harmony and comity of
instrumentalities. ....

   48. Mr. Shah lastly placed reliance on the case of State of Kerela v. Mathai
Verghese, , where the Supreme Court has held, to the following effect :

     "The Court can merely interpret a provision so as to make explicit the
intention of the legislature. It cannot rewrite, recast or redesign the
provision since the power to legislate has not been conferred on the Court."

   49. We have considered the aforesaid submissions advanced by Mr. Shah, in the
light of the decisions relied upon by him and we find that what we are doing in
the present case is not reenacting the provisions of Section 10 by adding or
subtracting words from the Section. We are also not embarking on the sphere of
legislation. All that we are doing is the striking down of portions of the
section which are ultra vires the provisions of the Constitution. If only such
provisions, which are ultra vires Constitution, can be struck down, without
striking down the entire section, it is always open to a Court to retain the
rest of the Section which does not suiter from a similar vice. In the instant
case, we find that by striking down the offending portions the rest of the
section, which does not offend the provisions of the Constitution, can
legitimately be maintained. In the circumstances, we proceed to strike down the
offending portions of Section 10 of 'the Act'.

   50. The Supreme Court in the case of Anil Kumar Mahsi. (supra), was concerned
with an altogether different and distinct challenge to Section 10 of the Act and
that too on the part of a husband. There, the challenge was based on the ground
that rape, sodomy and bestiality are made grounds for divorce to a wile and
against a husband whereas the same was not available to a husband. The Supreme
Court has held that the above provision is not discriminatory against the
husband. The Court was not at all concerned with a challenge raised before us
and that too on the part of wives. Aforesaid decision, in the circumstances,
will not be a bar against considering the challenge raised before us.

   51. We have not, in the instant case, sought to redraft Section 10 by
comparison of provisions of similar statutes as suggested by Mr. Shah. We have
merely struck down portions of Section 10 which we have found to be offending
Articles 14, 115 and 21 of the Constitution.

   52. As far as the provisions of Section 16 are concerned, the same provide
that decree of a dissolution of marriage made by a High Court shall, in the
first instance, he a decree nisi and the same can he made absolute only after a
period of not less than six months from the pronouncement thereof.

   53. As far as the provisions of Sections 17 and 20 are concerned, they
provide for confirmation by High Court of decrees for dissolution of marriages
and decrees for nullity of marriages passed by District Judges. Such
confirmation is required to be made by a Bench of the High Court consisting of
not less than three Judges. Aforesaid provisions, we find, smack of procedural
unreasonableness. There are several judicial pronouncements which have held that
Section 17 of 'the Act" amounts to a procedural unreasonableness. In the case of
Mrs. Neena v. John Pormer, (SB), it has been observed, as under :

     "9. Before purling with the case we would like to observe that in genuine
cases, the procedure prescribed by S. 17 of Indian Divorce Act. 1869 requiring
confirmation by High Court of a decree of dissolution of a marriage made by
District Court pranks the agony of the affected parties even though none of the
affected parties desirous of preferring an appeal. We see no valid justification
for continuation of this procedure. specially when no such procedure is
prescribed by other Acts. That is why in U. P. by an amending Act (Act No. 30 of
1957) paras one to five of S. 17 have been omitted. In our opinion there is an
urgent need for making suitable amendments in the Indian Divorce Act as made in
U.P."

   In the case of Swapna Ghosh v. Sadananda Ghosh, (SB), it has been observed' -
under the Special Marriage Act. providing the general matrimonial law of the
land and the various special matrimonial laws governing all the communities in
India, a decree of dissolution by a District Court is final, conclusive and
binding, unless the party aggrieved chooses to prefer appeal while because of
Section 17 of Indian Divorce Act, a similar decree between the Christian spouses
would not acquire legal efficacy unless proceedings are dragged to the High
Court before a 3-Judge Bench and confirmed by it. Necessity of confirmation by
High Court, under Section 17 of the Indian Divorce Act amounts to procedural
unreasonableness,

   54. In the case of Ramesh Toppo v. Violet Toppo.(SB), the Calcutta High Court
has observed that -- Section 17 of the Indian Divorce Act requires confirmation
of a divorce decree passed by a District Judge by a Bench of High Court of not
less than three Judges. This needs to be amended as it is violative of Article
15 and of procedural due process for denying procedural reasonableness to
Christians.

   55. Section 17, we further find, provides that in case a High Court comprises
of only two Judges and decree passed by a District Court conies up for
confirmation before !he said two Judges and in case of a difference of opinion,
the provision contemplates that the decision of the Senior Judge would prevail.
In our Judgment, the aforesaid procedure contemplated by Sections 16. 17 and 20
arc unreasonable and arc arbitrary in nature. The same achieves no useful object
or purpose. The procedure provided tends to perpetuate the agonies of the
affected parties for no useful purpose. If such a procedure is absent in other
similar enactments, we do not find any propriety why this procedure should be
applied to Christian spouses. The said procedure, in the circumstances, is
liable to be struck down by suitable amendments, which we suggest should be
brought about by suitable amendments in 'the Act' .

   56. In the result, we hold that the indicaled portions of Section 10 of the
Act are ultra vires Articles 14, 15 and 21 of the Constitution and the same are
accordingly struck down. We further find the provisions of Sections 16, 17 and
20 of the Act are also arbitrary and unreasonable. We suggest that the
legislature should intervene and carry out suitable amendments to 'the Act' at
the earliest. We direct that a copy of this order may be forwarded forthwith to
the Ministry of law and Justice for such action as they may deem fit to take.

   57. The present suits will now go back to the learned single Judge for
decision in accordance with law.

   58. At this stage, the counsel appearing for the Union of India, applies for
slay of this order in order to enable the Union of India to carry the matter to
the Supreme Court. We find that the Full Bench of the Kerala High Court had
similarly struck down the provisions of Section 10 of the Act. The said matter
was not carried to the Supreme Court. Even in the present suits, even though
notices were served upon the learned Attorney General, no affidavit-in-reply has
been filed in any of the mailers. Mr. Shah, at the commencement of the
arguments, had frankly staled that, despite several letters and reminders, he
has received no instructions whatsoever in the matter. In the circumstances, we
find that no useful purpose will be served in granting stay. In any event. Union
of India will have sufficient time at its disposal to impugn our order, if so
advised, as all that has been done in the instant case is to remit the present
suits for trial to the learned single Judge. Prayer, in this behalf, is
accordingly rejected.

   59. Order accordingly.