Youth Welfare Federation Rep. By ... vs Union Of India (Uoi) Rep. By Its ... on 9 October, 1996

    Youth Welfare Federation Rep. By Its Chairman, K.J. Prasad vs Union Of India
(Uoi) Rep. By Its Secretary, Law Dept. And Anr. on 9/10/1996

JUDGMENT

   Lingaraja Rath, J.

   1. Questions of deep significance, some of which in many respects are
perplexing in nature have teen referred to this Bench in the context of
consideration of the vires of Sections 10 and 22 of the Indian Divorce Act, 1869
(hereinafter referred to as "the Act.").

   2. W.P. No. 9717 of 1983 was filed as public interest litigation raising the
question of vires of the Sections. During the hearing of the case the learned
single Judge felt the matter should be appropriately heard by a Division Bench
as "this case raises very important questions touching the personal law of the
Christians as contained in 1 he Indian Divorce Act." The learned Judge also felt
that it is appropriate for the Court to hear representations of organisations of
the Christian community including of women which should be vitally interested in
the matter. Notices were issued to seven organisations whose names were
ascertained from the Bar and permission was also allowed to any other person,
organisation or institution to intervene in the matter either for or against the
contentions raised in the writ petition. In pursuance of the direction a press-
note was issued by the Registrar of the High Court. Seven Christian
organisations in Andhra Pradesh, the Andhra Pradesh High Court Women Lawyers
Association and two individuals filed intervention applications. When the case
along with another Writ Petition No. 8160 of 1984 which has since been dismissed
as not pressed came up for hearing, representation was made by the learned
Counsel Smt. Jayasree Sarathy that certain other organisations and individuals
were to file separate writ petitions. Writ Petition Nos. 5106, 5585 and 5702 of
1994 were filed by two individuals and young Women Christian Association
respectively questioning the validity of Sections 10, 17, 22 and 55 of the Act.
Even so, at the time of hearing the learned Counsel confined the challenge only
to Sections 10 and 22 of the Act. The Division Bench before which the matter
came, besides hearing the learned Counsel appearing, also obtained the services
of Sri K.G. Kannabhiran, Senior Advocate to argue the case as amicus curiae.
After detailed hearing the Bench however felt the cases as projecting
substantial questions deserving considerations by a Full Bench for which it made
the present reference. The considerations that weighed with the Division Bench
were whether the vires of any personal law is available to be tested on the
anvil of Part III of the Constitution of India and whether those could be
treated as laws in force and as to the effect of the adoption of the Universal
Declaration of Human rights and the two International Covenants by the Union of
India on 10-4-1979. The four questions framed by the Division Bench were as
follows:

     "1. Whether the expression 'laws in force' in Article 13 of the
Constitution of India encompasses personal laws?

     2. Whether the provisions of Part III of the Constitution of India have no
application in testing the legality of any personal law?

     3. If the answer is in the negative that personal laws do not enjoy any
immunity, whether Sections 10 and 22 of the Indian Divorce Act are violative of
Articles 14, 15(1) and 21 of the Constitution of India?

     4. What is the effect of the Declaration made by the Union of India dated
10-4-1979 accepting the Universal Declaration of Human Rights and the two
International Covenants on Civil and Political Rights and on Economic, Social
and Cultural Rights?"

   The two provisions of the statute to which challenge was made by the learned
Counsel are Sections 10 and 22 which may be extracted:

     "10. When husband may present 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 present petition for dissolution:- Any wife may present a
petition to the District Courts 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 beastiality.

     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.

     Contents of Petition:- Every such petition shall state, as distinctly as
the nature of the case permits, the facts on which the claim to have such
marriage dissolved is founded."

     22. Bar to decree for divorce a mensa et thoro: but judicial separation
obtainable by husband or wife:- No decree shall hereafter be made for a divorce
a mensa et thoro, but the husband or wife may obtain a decree of judicial
separation, on the ground of adultery, or cruelty, or desertion without
reasonable excuse for two years or upwards, and such decree shall have the
effect of a divorce a mensa et thoro under the existing law, and such other
legal effect as hereinafter mentioned."

   3. Mr. V.L.N.G.K. Murthy who has advanced the main submissions, and I must
say with great clarity, analysis and erudition, has confined the attack only to
Section 10 of the Act as providing for gender discrimination by requiring the
wife to establish far more difficult and onerous grounds to obtain divorce than
the husband who becomes entitled to divorce if he only proves the wife to have
been guilty of adultery. He has also urged the Section to be violative of
Article 21 as the wife is, as the effect of the provisions, compelled to lead a
life of drudgery and continuous oppression of being tied to the bond of marriage
even where the marriage has, without a chance of any repair, unmistakably lapsed
into a coma and an euthanasia of it would be the more healthy operation. The Act
was enacted more than 125 years back which has been left unamended ever since
then even though great strides have been made in the context of emancipation and
liberation of women, even though the law in England, on which the statute was
based, has itself undergone vast improvements. Questions have been urged on the
basis of Article 13(1) of the Constitution of India that because of the
discrimination practised by the statute it became void on the introduction of
the Constitution. The provisions of Section 22 of the Act have also been
challenged as ultra vires of Article 21 of the Constitution on the same grounds.
Mrs. Jayasree Sarathy has also laid attack on Section 22 of the Act and Mr. C.P.
Sarathy, learned counsel appearing in W.P. No. 5106 of 1994 has addressed in a
general way. Mr. K.G. Karinabhiran has also rendered able assistance to the
Court of which grateful acknowledgment was also recorded by the Division Bench.
Argument has also been advanced that because of India being a party to the
Universal Declaration of Human Rights and it having adopted the Covenants on
10-4-1979, the provisions of the statute are to be so interpreted as to further
the objective and purpose of the declaration and covenants which should be the
approach of the Courts. Counter arguments have been advanced that personal laws
are outside the ambit of Part III of the Constitution and hence are unaffected
by Articles 14, 15 and 21 of the Constitution.

   4. Of the questions raised those relating to the meaning of "all laws in
force" in Article 13(1) and whether personal law is beyond the purview of the
jurisdiction of the constitutional courts so as to adjudicate upon their
validity are necessary to be first tackled since the proposition as advanced
presents a shut-door which unless is opened, access to the other questions is
not obtained.

   5. It is not necessary to dwell at length on the question what personal law
is, except in the passing, as undoubtedly the Act is one relating to the
Personal Law of Marriage of Christians in India. In Saldanha v. Saldanha, AIR
1930 Bombay 105 the expression was explained as being often used by jurists to
denote either lex dpmicilli or law of a person's nationality. The Court quoted
the passages in Westlake's Private International Law, Edn.7:

     "Was anciently the lex domicilli, and to a great extent is so still, but
the modern tendency is to substitute political nationality for domicil as the
test of personal law so far as possible."

     "Whenever the operation of a personal law is admitted in England, the
domicile of the person in question and not his political nationality, is
considered to determine such personal law."

   Later on, Blackwell, J. observed:

     "I think that the expression "personal law" in that Section would include
any personal law, apart from any personal law as to the form of marriage, which
forbade either of the parties to enter into a contract of marriage with one
another."

   The expressions 'domicile' and 'personal law' were considered in Pradeep Jain
v. Union of India, (paragraph 7)

   observing:

     "The word 'domicile' is to identify the personal law by which an individual
is governed in respect of various matters such as the essential validity of a
marriage, the effect of marriage on the proprietary rights of husband and wife,
jurisdiction in divorce and nullity of marriage, illegitimacy, legitimation and
adoption and testamentary and intestate succession to moveables. 'Domicile' as
pointed out in Halsbury's Laws of England (Fourth Edition) Volume 8, paragraph
421, "is the legal relationship between an individual and a territory with a
distinctive legal system which invokes that system as his personal law." It is
well settled that the domicile of a person is in that country in which he either
has or is deemed by law to have his permanent home."

   6. It is however the argument, placing reliance on the observations in The
State of Bombay v. Narasu Appa, and Krishna Singh v. Mathura Ahir, AIR 1980 SC
707 that all personal laws as a class are beyond the grip of Article 13(1) of
the Constitution to dwell upon their validity or invalidity on the touch-stone
of Part III of the Constitution, for which reason the petitions must fail.
Question Nos. 1 and 2 of the referring order precisely relate to those
submissions.

   7. In Narasu Appa's case, the Court considered the

   validity of the Bombay Prevention of Hindu Bigamous Marriages Act (Act 25 of
1946). One of the arguments that substantially engaged the discussion of the
Court was that the impugned Act discriminated against Hindus in applying it to
them as Muslim personal law, which permits polygamy, had become void at the
commencement of the Constitution being inconsistent to Article 15(1) of the
Constitution inasmuch as a Muslim male is permitted to have more than one wife
whereas a Muslim woman is restricted to one husband and that this discrimination
is one exclusively based upon sex. Even though the Muslim personal law of
polygamy had thus become void, yet the impugned Act singled out only the Hindu
community for a discriminatory treatment. Chief Justice Chagla held personal law
to be outside the ambit of Article 13(1) of the Constitution on the reasons that
the Constitution of India is modelled upon the Government of India Act, 1915 of
which Section 112, dealing with the law to be administered by the High Courts
provided that the High Courts shall, in matters of inheritence and succession to
lands, rents and goods, and in matters of contract and dealing between party and
party, when both parties are subject to the same personal law or custom having
the force of law, decide according to that personal law or custom and where the
parties are subject to different personal laws or customs, according to the law
or custom to which the defendant is subject. The Section made a clear
distinction between personal law and custom having the force of law, but though
the 1915 Act was the model before the Constituent Assembly, yet In defining
"law" in Article 13 only "custom or usage" was included in it but "personal law"
was omitted, which is a clear pointer to the intention of the Constitution
making body to exclude personal law from the purview of Article 13. The learned
Judge held that custom or usage is deviation from personal law and not personal
law itself and that difference between the two is clear and unambiguous for
which reason, even if custom or usage is hit by Article 13(1), yet personal laws
being distinct and separate from custom or usage are beyond the ambit of Article
13(1). The other reasons assigned by Justice Chagla to reach the conclusion were
that if Hindu personal law had become void at the commencement of the
Constitution by reason of Article 13, it was unnecessary to specifically provide
in Articles 17 and 25(2) (b) for certain aspects of Hindu personal law viz.,
abolishing untouchability and throwing open Hindu religious institutions of
public character to all classes or Sections of Hindus. Article 44 of the
Constitution providing for States endeavour to bring in uniform civil code
throughout the country itself shows the Constitution to have recognised the
existence of separate personal laws and Entry 5 of the Concurrent List also
given the power to the legislature to pass laws affecting personal law. The
learned Judge as a corrollary held, negativing the contention that personal laws
are continued under Article 372(1) of the Constitution, that it is clear that
the Constitution has dealt with personal laws only in certain respects and that
the scheme is to leave personal law unaffected except where specific provision
is made with regard to it and leave it to the legislatures in future to modify
and improve it and ultimately to put on the statute book a common and uniform
code. Personal law could not be said to have been continued under Article 372(1)
as Article 372(2) entitles the President to make adaptations and modifications
to the law in force by way of repeal and amendment and surely it could not be
contended that it was intended by that provision to authorise the President to
make alterations or adaptations in the personal law of any community. Justice
Gajendragadkar, as he then was, was the other Judge of the Division Bench and
concurred with the conclusion of personal law being outside the ambit of Article
13(2) though for reasons separately discussed. The learned Judge pointed out
that the foundational sources of both the Hindu and Mohammedan laws are their
respective scriptural texts which, so far Hindu law is concerned, are the Srutis
and Smritis, which, in course of developments spreading over several centuries,
were followed by several other texts and commentaries and that it had been the
business of the Court, as was pointed out by the Privy Council in Collector of
Madura v. Moottoo Kamalinga Sathapathy, 12 Moore's Indian Appeals 397 not so
much to inquire whether the disputed doctrine is fairly deducible from the
earliest authorities, as to ascertain whether it had been received by the
particular school which governs the district with which it has to deal. The same
was also true of Mohammedan law for which reason both the personal laws cannot
be said to have been passed or made by a legislature or other competent
authority and do not fall within the purview of the expression "laws in force".
Dwelling upon the definitions "law" and "laws in force" in Article 13(3) he held
that while Article 13(2) is dearly prospective and mandates the State to refrain
from making any law if it takes away or abridges the rights conferred by Part
III, yet "personal law" cannot be deemed to be included in the expression "laws
in force" on the ground that whatever is included in the word "laws" in Article
13(3) (a) must automatically be held to be included in the expression "laws in
force" in Article 13(3) (b). The learned Judge referred to the same reasoning of
Justice Chagla regarding Article 17 i.e., untouchability which owed its origin
to custom and usage and said that making a separate provision for its abolition
in Article 17 goes to show that custom or usage is not included in the
expression "laws in force". While saying so, the view was expressed that even if
the view so taken is wrong, yet it would not follow that personal laws are
included in the expression "laws in force" as neither Hindu law nor Mohammedan
law is based upon custom or usage having the force of law though undoubtedly in
both these laws custom is a source of law. But save except for the departures
from the general rules of Hindu law which are permitted on the ground of custom,
the remaining field of Hindu law is covered by the scriptural texts and so it
would not be possible to hold that either the Hindu law or the Mohammedan law is
solely or even principally based upon custom or usage having the force of law
and hence neither of those laws are laws in force within the meaning of Article
13(1). According to the learned Judge, personal laws are in force in a general
sense; they are in fact administered by the Courts in India in matters falling
within their purview. But the expression "laws in force" in Article 13(1) is not
used in that general sense and the expression refers to what may compendiously
be described, as statutory laws. There is no doubt that the laws which are
included in the expression must have been passed or made by the legislature or
other competent authority and unless this test is satisfied it would not be
legitimate to include in this expression the personal laws merely on the ground
that they are administered by the Courts in India.

   8. Custom is undoubtedly a source of law as was pointed out by Justice
Gajendragadkar. So far Hindu law is concerned, it is pointed out by Mulla in the
16th Edition, Page 3 that approved usage is a source of the law and it was
obligatory on the part of the King not only to enforce the sacred law of the
text but to make authoritative the customary laws of the subjects as they were
stated to be. These included customs of countries, districts, castes and
families: So also of traders, guilds, herdsmen, money lenders and artisans, for
their respective class. In the same book it was pointed out in Page 57:

     "In a long series of cases decided by the Privy Council and Courts in
India, the rule has been accepted that custom can override any text of smriti
law. In Collector of Madura v. Moottoo Ramalinga (supra), the Judicial Committee
of the Privy Council observed: "Under the Hindu system of law, clear proof of
usage will outweigh the written text of law. It has been repeatedly stated that
a custom may be in derogation of smriti law and where proved to exist may
supersede that law. The tenacity of family customs even under the strain of
migration has been repeatedly recognised in decisions of the Courts. It may,
however, be observed that though local and family custom, if proved to exist,
will supersede the general law, the general law will in other respects govern
the relations of the parties outside that custom."

   In discussing in Chapter 2 - Sources of Hindu Law, the learned author says,
the three main sources of Hindu Dharma or law are (1) the Sruti (2) the Smriti
and (3) the Custom. The question of personal law being outside the rigours of
Part III of the Constitution was pronounced in Krishna Singh's case (4 supra).
The Court said that in its opinion the High Court had failed to appreciate that
Part III of the Constitution does not touch upon the personal laws of the
parties and that the Hindu law to be enforced is as is derived from the
recognised authoritative sources of the law i.e., Smritis and the commentaries
referred to, as interpreted in the judgments of various High Courts, except
where such law is altered by common usage or custom or is modified or abrogated
by the statute. The validity of Madras Hindu (Bigamy Prevention and Divorce)
Act, 1949 (Act 6 of 1949) was discussed by the Madras High Court in Srinivasa
Aiyar v. Saraswathi Ammal, in the context of its being ultra vires as making a
distinction between Hindus and Muslims and held that Entry 5 of List 3 of
Schedule 7 of the Constitution of India itself conferred legislative power to
enact laws, amend or alter or repeal parts or whole of the personal law. But
while the legislature has the authority, yet it did not empower it to abrogate
the fundamental rights in Part III of the Constitution. Thus the legislative
authority to legislate upon personal laws was upheld. This Court upheld the
powers of the legislature to modify or amend the personal laws in the Full Bench
decision in G. Sambireddy v. G. Jayamma, (F.B.). Sections 11 and 17 of the Hindu

   Marriage Act were challenged as discriminatory in imposing monogamous
marriages on Hindus while the right to polygamy of Muslims was left unaffected
and thereby exposing Hindus marrying in contravention of the Act to prosecution
under Section 494 I.P.C. The Court relied upon Narasu Appa's case (supra) and
Saraswathi Animal's case (6 supra) and held that the Hindu Marriage Act is an
Act amending the body of personal law known as Hindu law. Non-adherence to
religion but subjection to a certain personal law is the basis of the
classification made by the Hindu Marriage Act and that it cannot be said
therefore that a classification is based on religion only.

   9. The learned referring Judges observed that it appeared from the
observations of Sen. J. in Krishna Singh's case (supra) that uncodified personal
laws, not altered by usage or custom, are outside the purview of Part III of the
Constitution and that only if they are modified or abrogated by statute, their
constitutional validity could be tested with reference to the Part III of the
constitution, but that the decision was not noticed in the two later decisions -
Saroj Rani v. Sudarshan Kumar, and Partap Singh v. Union of India, in which
respectively the constitutionality of

   certain provisions of Hindu Marriage Act and Hindu Succession Act, and the
constitutional validity of Section 14(1) of the Hindu Marriage Act, was
considered. But the question of personal laws being outside or not of the ambit
of Part III of the Constitution did not arise in the two cases.

   10. The controversy arises out of Article 13 itself. While Article 13(1)
invalidates all laws in force in the territory of India immediately prior to the
commencement of the Constitution in so far as they are inconsistent with Part
III, Article 13(2) commands an absolute prohibition for any law to be made in
contravention of the Part. "Law" and "law in force" are explained in Article
13(3) (a) and (b) respectively by way of inclusive definition. Since laws in
force have been defined by an inclusive definition it has been argued that the
words must receive their natural meaning as meaning all laws, statutory,
personal, customary or otherwise and hence whatever be the nature of the pre-
constitutional law, such of it to have become void at the promulgation of the
Constitution which is contrary to the provisions of Part III, The view has
proponents both by way of judicial interpretations as well as authors. In In Re
Amina, a single Judge of the Court adopted the view and differing from the
decision in the State of Bombay v. Narasu Appa (supra), made a reference for
constitution of a larger Bench of three Judges to decide the questions raised.
It is not known, Bar has not placed any material before us, whether any Larger
Bench of the Court has since dealt with the questions and has taken a different
view. I must hence proceed on the basis that Narasu Appa's case (supra) still
holds the field so far as State of Bombay is concerned.

   11. H.M. Seervai in his well known work 'Constitutional Law of India'
propounds the view at Page 676 of the 4th Edition (Para 9.392) that there is no
difference in the expression "existing law" and "law in force" and consequently,
personal law would be "existing law" and "law in force" and that this conclusion
is strengthened by the consideration that custom, usage and statutory law are so
inextricably mixed up in personal law that it would be difficult to ascertain
the residue of personal law as existing outside them: it was, therefore,
necessary to treat the whole of personal law as existing law or law in force
under Article 372 and to continue it subject to the provisions of the
Constitution and subject to the legislative power of the appropriate
legislature. Identical view has been advanced, on a critical approach, in the
Book "Muslim Law and the Constitution" by Justice A.M. Bhattacharjee, the second
edition of which has been placed before us.

   12. In interpreting Article 13 of the Constitution the view that the
definition of "law" in Article 13(3) (a) must pertain to only Article 13(2) and
the definition of the words "laws in force" in Article 13(3) (b) is in reference
to Article 13(1) alone has long since been abandoned, such argument advanced by
the Solicitor General in the State of Bombay v. Narasu Appa (supra) was repelled
by Chief Justice Chagla as accepting the contention would render the words
"custom" or "usage" superfluous as the State cannot make any custom or usage.
The matter was set at rest in Sant Ram v. Labh Singh, , a

   Constitutional Bench decision. The Court ruled, rejecting the contention,
that the second definition, i.e., "laws in force" does not in any way restrict
the ambit of word "law" in the first clause as extended by the definition of
that word. The second definition merely seeks to amplify the first one by
including something which but for it, would not be included in the first
definition. Thus for such reason, the Court held custom and usage having in the
territory of India the force of law to be contemplated by the words "all laws in
force" and hence to be affected by the fundamental rights. The Court thus held
that the word "laws" in the second definition has also the meaning of "law" as
defined in the first definition. Even earlier, custom or usage having the force
of law at the commencement of the Constitution has been held as yielding to Part
III of the Constitution if they are in any way inconsistent to it. It was so
ruled in Dasaratha Rama Rao v. State of Andhra Pradesh, and Bhau Ram v. Baij
Nath, . But even if it is so, yet the question still

   remains as to whether the expression "laws in force" would literally mean all
the laws in force in the territory of India, even if they were uncodified, non-
statutory, are not custom or usage having the force of Jaw in the territory of
India. The expression "law in force" is also used in Article 372 of the
Constitution as also in Article 371-F(k). Article 372 provides, notwithstanding
the repeal of the enactments referred to in Article 395, for continuance of
existing laws and their adaptation saying that all the law in force in the
territory of India immediately before the commencement of the Constitution shall
continue in force therein until altered or repealed or amended by a competent
legislature or other competent authority. In Explanation 1 to the Article, the
expression "law in force" is given an inclusive definition similar to the
definition in Article 13(3) (b). In Article 372 the President is authorised to
make adaptations or modifications, either by way of repeal or amendment, to
bring the provisions of any law in force in the territory of India in accord
with the provisions of the Constitution. The word "existing law" is not defined
in Article 372 even though the marginal heading of the Article refers to the
words. Those words are defined in Article 366, Clause 10 as an exclusive
definition to say:-

     "existing law" means any law, ordinance, order, bye-law, rule or regulation
passed or made before the commencement of this Constitution by any Legislature,
authority or person having power to make such a law, ordinance, order, bye-law,
rule or regulation."

   This definition differs from the definition of 'law' in Article 13(3) (a)
inasmuch as the latter is an inclusive definition and refers to "notification"
and "custom or usage" having in the territory of India the force of law, whereas
those words are absent in the former. The continuance in force of laws under
Article 372 is intended to meet the situation arising out of repeal of the
enactments specified in Article

   395. That Article repealed the Indian Independence Act, 1947, the Government
of India Act, 1935, together with all enactments amending or supplementing the
latter Act but not including the abolition of Privy Council Jurisdiction Act,
1949. Since by repeal of such Acts, enactments enacted and saved under the
authority of those Acts faced the prospect of being also repealed, the provision
of Article 372 was necessary to continue in operation those laws. What Article
372 says was thus the enacted or framed laws i.e., laws which were defined as
existing laws in Article 366(10) and hence it cannot be said that either any
personal law or any custom or usage having the force of law in the territory of
India prior to the commencement of the Constitution was saved under Article 372
to continue in force after the commencement of the Constitution. That the
expression "All the laws in force" and "existing laws" in Article 366(10) have
no different meaning, has been variously accepted in judicial opinions and by
commentators as also sanctified by the Supreme Court. The question was
exhaustively discussed by Chief Justice Chagla in State of Bombay v. Heman
Santlal, where he pointed out that even though ordinary and

   normal canon of construction requires that when in a statute or in a
Constitution two different expressions are used, as far as possible, two
different meanings must be given to the two expressions because it must be
assumed that the legislature and the Constituent Assembly did not use two
different expressions without intending to convey two different meanings, yet
instances are not unknown where two different expressions have been used to
convey the same meaning. Tracing the development of the Constitution from the
Government of India Act, 1935, and referring to Sections 292 and 293 of that Act
to which Article 372 corresponds and the statute passed by the British
Parliament on 18th February, 1937 in 1 Geo. VI C.9 explaining the expression
"law in force" in Sections 292 and 293 of the Government of India Act and
pointing out the definition of "existing Indian law" used in Sections 293 and
311, both the expressions were shown to have the same meaning as in Article
366(10). While explaining as to when marginal notes to Sections in statutes may
be looked into for construing a Section, he held that when the words are
ambiguous there should be no objection to looking at the marginal note in order
to understand the drift of the Section and that it should also be borne in mind
that at one time marginal notes did not appear in the statute by authority of
Parliament, but that was no longer true as every part of the statute including
marginal notes appears in the statute by authority of Parliament. In reaching
the conclusion reliance was also placed in Keshavan Madhava Menon v. The State
of Bombay, 1951 (2) SCR 228 in which Justice Das used "existing laws" and "law
in force" as interchangeable terms. Seervai in his very same work also concurs
with the view at Page 407 in para 8.17:

     "It is submitted that the conclusion is correct, and the following
historical account given by Chagla C.J. in Alreja's case supports that
conclusion. Sections 292 and 293 of the G.I. Act 35 (which correspond to Article
372), used the expression "law in force", but the marginal note to Section 292
was "existing law of India to continue in force", and Section 293 was
"adaptation of existing Indian laws etc." Before the G.I. Act, 35, came into
force on April 1, 1937, it was realised that the use of the expression "law
inforce" might create difficulties in carrying out the intention of the British
Parliament. For, though "existing law" would include all law whether it was in
actual operation or was capable of being brought into operation under the powers
conferred by such law, "laws in force" might be taken to mean only that part of
the law which was actually in operation and not that part which was capable of
being brought into operation, for, a law cannot be said to be in force when it
is not brought into operation at all. Realising this difficulty, the Br.
Parliament enacted on February 18, 1937, the India and Burma (Existing Laws)
Act, 1937, being an Act "to explain and amend Sections 292 and 293 of the G.I.
Act, 35". Thus, the Br. Parliament was not content to leave Sees. 292 and 293 to
be interpreted in the light of the marginal notes which spoke of "existing law",
but indicated in the body of the amending Act itself, and in its title, that
those Sections dealt with "existing law". In view of this history, the Br.
Parliament did not repeat the mistake when it enacted Section 18, Indian
Independence Act, 1947. That Section made "provisions as to existing law" and
sub-clause (3) provided: "Save as otherwise expressly provided in this Act, the
law of Br. India and the several parts thereof existing immediately before the
appointed day shall, so far as applicable and with the necessary adaptations
continue as the law of each of the new Dominions and the several parts
thereof..." (italics supplied). This history of English Parliamentary
legislation was overlooked, and the phraseology of Sections 292 and 293, as
amended in 1937, and the marginal notes thereto, were stereotyped in Article 372
and the explanation to that Article was also used in Article 13(3') (b). It is
submitted that the above legislative history clearly shows that the expression
"law in force" was used in the previous Constitution Acts to mean "existing
law", and is used in the same sense in our Constitution."

   The matter was clinched by the Apex Court in Edward Mills Co. v. State of
Ajmer, , a Constitutional Bench decision saying:

     "The first point does not impress us much and we do not think that there is
any material difference between "an existing law" and "a law in force". Quite
apart from Article 366(10) of the Constitution, the expression "Indian law" has
itself been defined in Section 3(29) of the General Clauses Act as meaning any
Act, ordinance, regulation, rule, order, or bye-law which before the
commencement of the Constitution had the force of law in any province of India
or part thereof. In our opinion, the words "law in force" as used in Article 372
are wide enough to include not merely a legislative enactment but also any
regulation or order which has the force of law."

   The meaning of the expression "law in force" is thus understood in the
context of Article 366(10). It would be rational to adopt the same meaning so
far as the words "laws in force" in Article 13 is concerned except to the extent
the definition in Article 13(3) (b) denotes a wider meaning, i.e., to include
also customs or usages having the force of law.

   13. A combined reading of Articles 13,366(10) and 372 of the Constitution of
India reveals the true iritention of the use of the words in Articles 13 and
372. It would thus be correct to say that the expression "laws in force" or "law
in force" in Articles 13 and 372 have the same meaning as "existing law" in
Article 366(10) except that the words stand extended in Article 13 to also
include customs or usages having the force of law because Article 13(3) (b) is
to be read with Article 13(3) (a). Thus understood, the existing laws which are
continued under Article 372 would continue to operate subject to the provisions
of Article 13(1) i.e., if they are not void because of being inconsistent with
the provisions of Part III of the Constitution. The definitions of "laws in
force" or "law in force" being inclusive in nature, would naturally mean that
the expressions are intended to be extended ones i.e., while law or laws in
force would have to be understood in their natural sense as whatever law
continuing to be in force, the definitions make it clear that all laws which
were made by legislature or competent authorities prior to the commencement of
the Constitution, has not been repealed even if such law or any part of it was
not in operation, would be regarded as laws in force and continue to be
operative unless it is void because of Article 13(1). But this would, applying
the clue available in Article 366(10), be the mandate only in respect of enacted
or framed laws but not those which are not enacted by any legislative body or
other competent authority but are nonetheless laws which are applied by the
Courts as administering the relations between the parties, say as relating to
marriage, inheritance, etc. Those include the foundational sources of the
personal laws of the different communities applied to them by the Courts
administering the law in the land and hence view was correctly taken in the
State of Bombay v. Narasu Appa (supra) that while such laws are also laws in
force in general way, yet they are not laws in force in the sense it is used in
Articles 13(1) or 372. Those scriptural texts and foundational sources of
personal laws of different communities at the same time transcend the
legislative authorities inasmuch as they are not enacted by them and are also
subjected to its authority being liable to be amended, anulled or modified
because of the legislative competence conferred upon the legislative bodies in
Entry 5 of the concurrent list, as the Constitution of India is the paramount
law which the people of the country have given unto themselves and subjecting
all laws, in whatever shape they may be, to its overriding authority. Judged in
that context the continuance of the non- statutory personal laws is not due to
the provisions in Article 372 which only, as is clear from the Explanation 1 to
the Article and Article 366(10), continues in operation only a law passed or
made by a legislature or other competent authority, the non-statutory personal
laws are neither passed nor made by such authorities.

   14. Justice Gajendragadkar referred in Narasu Appa's case (supra) to In re
Kahanda's Na 'rranda's, ILR 5 Bombay 154 when Justice West had come to the
conclusion that the general rule was that the private law of a community is not
affected by a change of Rulers and the provisions in question there had to be
construed in the light of that general rule. In Mayor of Lyons v. East India
Company, 1 Moore's Indian Appeals 175 it was pointed out by Lord Brougham:

     "It is agreed, on all hands, that a foreign settlement, obtained in an
inhabited country, by conquest, or by cession from another power, stands in a
different relation to the present question, from a settlement made by
colonizing, that is, peopling an uninhabited country.

     In the latter case, it is said, that the subjects of the Crown carry with
them the laws of England, there being, of course, no lex loci. In the former
case, it is allowed, that the law of the country continues until the Crown, or
the legislature, change it."

   Kahanda's Na 'rranda's ( supra) referred to the decision in The Advocate
General of Bengal v. Ranee Surnomoye Dossee, 9 Moore's Indian Appeals 391
wherein the question was the prerogative of the Crown to forfeit the personal
property of person a committing suicide in Calcutta. It was held that the
English law of forfeiture of the goods and chatties of a/do dese did not extend
to a native Hindu though he was committing suicide at Calcutta and distinction
was pointed out where Englishmen establish themselves in an uninhabited or
barbarous country in which case they carry with them not only the laws but also
the sovereignty of their own and those who live among them and become members of
their community are subject to the same laws, but that the general rule did not
apply to early settlement of the English in India and the permission to the
settlors to use their own laws within their factories did not extend those laws
to natives associated with them within the same limits. The decision was
acknowledged by the Supreme Court in Shiv Bahadur Singh v. State of Vindhya
Pradesh, in para 16 saying that when various component States became the United
State of Vindhya Pradesh on 18-3-1948, in the normal course and in the absence
of any attempts to introduce uniform legislation throughout the State, the pre-
existing laws of the various component States would continue to be in force on
the well-accepted principle laid down by the Privy Council in Mayor of Lyons v.
East India Company, 1 Moore's Indian Appeals 175. In Promod Chandra v. State of
Orissa, the Supreme Court observed: "It may be

   that the presumption is that the pre-existing laws of the newly acquired
territory continue, and that according to ordinary principles of International
Law private property of the citizens is respected by the new sovereign, but
Municipal Courts have no jurisdiction to enforce such international
obligations." But that is a different matter and that even if there is a change
of Rulers, yet the private law of the different communities do not change. It is
apt to make a reference to the observations of the Supreme Court, though in a
different context, in Umaji v. Radhikaba, :

     "The historical evidence and earlier legislations referred to above, the
political, legal and constitutional position accepted and acknowledged by the
Constituent Assembly itself when considering the Draft Constitution and in
enacting it, and the observations of Shah, J. in Vora Fiddali's Case falsify the
assumption

     made and the conclusion reached by the Full Bench that the Constitution
made a total break with the past and set up new institutions. On the contrary,
what is established by the above data is that not only was there no break with
the past but the Constitution was the culmination of the aspirations of the
people of India to be independent and to be governed by their own elected
representatives and that the existing institutions, including the High Courts,
as also the laws in force which were in existence at the commencement of the
Constitution, were preserved and continued by the Constitution. What the
Constitution did was to put its imprimatur upon them and upon their
continuance."

   Thus the personal law of different communities continue in operation
unaffected by any change of Rulers. Such law would continue to operate unabated
until because of social necessity of reformation or for any other reason the
competent authority changes the law. Once the law is so changed and made into an
enactment, ordinance, bye-law, order or otherwise it would, in the context of
the Indian Constitution, be subject to the provisions of Part III and has to
satisfy the test and the Courts may declare it void. It would follow that when
such enactment, etc. of the personal laws is but a reiteration or reaffirmation
without any modification or change of the scriptural texts, it cannot become
void only because a subsequent legislative affirmation of it has come in. But,
ushering in of a new Constitution does not mark a change of rulers and as such
the position of continuance of personal laws, even when rulers are changed,
could not be worse on the promulgation of the Constitution. The question was
considered in State of Gujarat v. Vora Fiddali,

   wherein Justice Shah observed in para 139:

     "It has also to be remembered that promulgation of the Constitution did not
result in transfer of sovereignty from the Dominion of India to the Union. It
was merely change in the form of Government. By the Constitution, the authority
of the British Crown ever the Dominion was extinguished, and the sovereignty
which was till then rooted in the Crown was since the Constitution came into
force derived from the people of India. It is true that whatever vestige of
authority which the British Crown had over the Dominion of India, since the
Indian Independence Act was thereby extinguished, but there was no cession,
conquest, occupation or transfer of territory. The new governmental set up was
the final step in the process of evolution towards self-government. The fact
that it did not owe its authority to an outside agency but was taken by the
representatives of the people made no difference in its true character. The
continuance of the governmental machinery and of the laws of the Dominion, give
a lie to any theory of transmission of sovereignty or of the extinction of the
sovereignty of the Dominion, and from its ashes, the springing up of another
sovereign as suggested in which I will presently examine."

   15. In view of the discussions, the proposition of invalidity of personal
laws which are inconsistent to Part III would only be partially correct i.e.,
that the statutory personal laws and customs or usages having the force "of laws
only are subject to the paramountcy of the fundamental rights but it has to be
held, by necessary interpretation, that non-statutory personal laws at the
commencement of the Constitution transcend the fundamental rights. This
interpretation of Articles 13(1) and 372 would be logical and wholesome as
interpretation of the Constitution differs from interpretation of ordinary
statutes and the maxims of statutory interpretation do not always apply to the
interpretation of Constitution. The Constitution is a living and organic
document embodying not only the hopes and aspirations of the people to which it
belongs but is also capable of suitably adapting itself to the growing and
changing needs of the society. It is a document always having its root in the
present and sprouting its branches to the future. The difference between
interpretation of ordinary statutes and of the Constitution was stressed by the
Apex Court in Supreme Court Advocates on Record Association v. Union of India,
AIR 1993 SC 268 with Justice Pandian observing:

     "So it falls upon the superior Courts in a large measure the responsibility
of exploring the ability and potential capacity of the Constitution with a
proper diagnostic insight of a new legal concept and making this flexible
instrument serve the needs of the people of this great nation without
sacrificing its essential features and basic principles which lie at the root of
Indian democracy. However, in this process, our main objective should be to make
the Constitution quite understandable by stripping away the mystique and enigma
that permeates and surrounds it and by clearly focussing on the reality of the
working of the constitutional system and scheme so as to make the justice
delivery system more effective and resilient."

   Justice Kuldip Singh in the same case observed:

     "It is not enough merely to interpret the constitutional text. It must be
interpreted so as to advance the policy and purpose underlying its provisions. A
purposeful meaning, which may have become necessary by passage of time and
process of experience, has to be given. The Courts must face the facts and meet
the needs and aspirations of the times. Interpretation of the Constitution is a
continual process.

x x x x x x x x x x x

     The constitutional provisions cannot be cut down by technical construction
rather it has to be given liberal and meaningful interpretation. The ordinary
rules and presumptions, brought in aid to interpret the statutes, cannot be made
applicable while interpreting the provisions of the Constitution."

   Justice Ahmadi, as he then was, also observed while issuing a warning that
where the words are unambiguous, effect must be given to them, as that was the
constituent body's intent:

     "It is well settled that a Constitution is an ever evolving organic
document which cannot be read in a narrow, pedantic or syllogistic way but must
receive abroad interpretation. Constitution being a growing document its
provisions can never remain static and the Court's endeavour should be to
interpret its phraseology broadly so that it may be able to meet the
requirements of an ever-changing society. But while it may be permissible to
give an enlarged or expanded meaning to the phraseology used by the
Constitution-makers, while it may be permissible to mould the provisions to
serve the needs of the society, while it may even be permissible in certain
extreme situations to stretch the meaning and, if necessary, bend it forward, it
would certainly be impermissible to break it or in the guise of interpretation
to replace the provisions or rewrite them."

   In another case, R.C. Poudyal v. Union of India, , the majority observed:

     "In the interpretation of a constitutional document," words are but the
frame work of concepts and concepts may change more than words themselves." The
significance of the change of the concepts themselves is vital and the
constitutional issues are not solved by a mere appeal to the meaning of the
words without an acceptance of the line of their growth."

   It is hence to be found as to what was the real intention of the Constitution
when it said that all laws in force in the territory of India immediately before
the commencement of the Constitution shall be void to the extent they are
inconsistent with Part III. It is indeed very difficult to conceive that the
framers of the Constitution did ever visualise that on one day, when the
Constitution is introduced, all laws of all communities would be ironed out of
all their differences by application of the fundamental rights and the
differences of religious perception, custom, practice, nay, of the very way of
livings of this vastly heterodox multitudes of communities would be deprived of
their individuality in the matters of religion ad religious practices. The
enormity of the resultant situation would have prevented any such contemplation
to have been ever made and indeed no such precipitative action could ever have
been intended as is clear from Article 44 which put the introduction of a
uniform civil code not in Part HI but in Part IV, as a goal to be achieved in
good time when situation conducive to it prevails. If by mere force of Article
13 the object of the uniformity would have been stood achieved, there would have
been no necessity for placing Article 44 on the body of the Constitution.
Another reason for which the non-statutory personal laws must be held to be
outside the purview of Article 13(1) is that customs or usages having force of
law were specifically included as being law for he purpose of that Article as
otherwise there would have been room to contend that they were not laws within
its meaning. Custom and usages having the force of law are non-statutory having
not been framed by anybody and hence when their inclusion was thought necessary,
those were specifically specified as being laws for the purpose of the Article.
If it would have been the intention of the Constituent body to include non-
statutory personal laws as well, that would have been made clear by specific
inclusion. Those cannot be brought within the ambit of the Article merely
because they were laws applied by the Courts of India as similarly customs or
usages having the force of law were also being applied by the Courts of India in
the administration of justice but yet were specifically included and there was
no reason why non-statutory personal laws could not have been likewise included.

   16. Argument has been advanced drawing sustenance from the book 'Muslim Law
and the Constitution' by Justice A.M. Bhattacharji that even if it is assumed
that the power under Article 372(2) to adopt and modify laws in force was not
intended to be used in respect of non-statutory personal laws, even though there
is no inherent limitation in the Article in that regard, that question would be
relevant only in considering the propriety or vires of the adaptation order, if
any, made in respect of such personal laws, if at all. Such a challenge even if
could be made in the teeth of the words in Article 372 that the adaptation order
is not challengeable in any Court of Law, yet there is no reason why the
propriety under Article 372(2) should be projected for interpretation of Article
372(1) when the expression "laws in force" appears to be absolutely unqualified
and the manifest intention appears to be to continue "all the laws in force in
the territory of India." Adopting the argument, reference has been made to the
Nine Judge Bench decision in State of W.B. v. Corporation of Calcutta, which
purported to approve the observations in

   Director of R & D v. Corporation of Calcutta, and

   V.S.R. & Oil Mills v. State of AP., that "laws in

   force" includes not only enactments of the Indian legislatures but also the
common law of the land which was being administered by the Courts. The question
that faced their Lordships in State of W.B. v. Corporation of Calcutta, was
whether a canon of interpretation

   was substantive law adopted by the Courts of India and hence was the law of
the land. The Court held to the contrary and differentiated to say that the
canon of construction was not "law in force" which only could be amended by
legislation. Referring to Article 372(1) it was pointed out that the Court had
earlier held in Director of R & D v. Corporation of Calcutta, that the
expression "law in force" includes not only enactments of the Indian
legislatures but also common law of the land which was being administered by the
Courts in India. In the relevant paragraph, paragraph 10 of Director of R& D v.
Corporation of Calcutta, , it was observed: "If we

   compare the provisions of Article 366(10) which defines 'existing law' it has
reference to law made by a legislative agency in contra-distinction to "laws in
force" which includes not only statutory law, but also custom or usage having
the force of law, it must be interpreted as including the common law of England
which was adopted as the law in this country before the Constitution came into
force." Thus, Director of R & D's case, was speaking of those

   common laws of England which had been adopted, before the Constitution came
into force, as law of this country. Their Lordships held in the very same
decision - State of W.B. v. Corporation of Calcutta, in paragraph 21:

     "To sum up: some of the doctrines of common law of England were
administered as the law in the Presidency Towns of Calcutta, Bombay and Madras.
The Common Law of England was not adopted in the rest of India. Doubtless some
of its principles were embodied in the statute law of our country. That apart,
in the Muffasil, some principles of common Law were invoked by Courts on the
ground of justice, equity and good conscience. It is, therefore, a question of
fact in each case whether any particular branch of the Common Law became a part
of the law of India or in any particular part thereof."

   It would hence be seen that Director of R& D's case (27 supra) which was
being referred to in State of W.B. v. Corporation of Calcutta (supra),in
thecontextonlysaid that common Law of England which had been adopted as the law
of this country before the Constitution came into force was also law in force
for the purpose of Articles 13(1) and 372. But as was itself acknowledged in
State of W.B. v. Corporation of Calcutta (26 supra), there is nothing to show
that such common laws of England were adopted as the body of law for this
country though some of its principles had been embodied in the statute law of
this country and some of the principles of the common law of England was being
applied as law only in the original side of the High Courts of Calcutta, Bombay
and Madras, and in the Mufasil, some principles of common law were invoked by
Courts on the ground of justice, equity and good conscience. What was being said
in State of W.B. v. Corporation of Calcutta (26 supra) was that the expression
"laws in force" also includes the common law of England which had been so
adopted and was being administered by the Courts in India. V.S.R. & Oil Mills v.
State of A.P. (28 supra), though referred to Director of R & D's case(supra),
but did not specifically deal with this question. It is from this to be
considered whether all non-statutory laws applied and administered by the Courts
in India prior to the commencement of the Constitution, including the personal
laws, not only owe their continuance, after the commencement of the
Constitution, to Article 372 but also become subject to the disqualification
under Article 13(1). In Krishna Singh's case (4 supra) the view expressed was
that Part III of the Constitution does not touch upon the personal laws of tine
parties. As has been seen, some other Courts have also taken the same view. Of
course, in Krishna Singh's case (4 supra), the detailed reasons for taking the
view are not there,- yet it must be taken that in rendering the decision the
Court was conscious of the decision in State of W.B. v. Corporation of Calcutta
(26 supra). But considering the matter as a whole, I would venture to observe
that in the earlier decision the Supreme Court did not lay down as a general
proposition that even all non-statutory laws which were being administered by
Courts in India before coming into force of the Constitution, were ipso facto
law in force within the meaning of Article 372 of the Constitution or laws in
force within the meaning of Article 13(1), and that the observation was confined
to only those common laws of England which were being administered by the courts
in India of which some had been adopted in the Indian statutes also. As is well
known, many of the common law principles of England were also not adopted and
were deviated in its application to India, discussion on which is not necessary
to prevent this judgment becoming over-burdened. For a fuller exposition,
reference may be made to "The Common Law of India" - The Hamlyn Lectures by M.C.
Setalvad - reprint edition published in 1970 by N.M. Tripathi Pvt. Ltd.

   17. I need only one other decision - United Provinces v. Atiqa Begum, AIR
1941 Federal Court 16 to explain. As regards the observation made in that case
at page 31 that Section 292 of the Government of India Act, 1935 applied not
only to statutory enactments then in force but to all laws, including even
personal laws, customary laws and common laws, it can only be said that the
effect of Section 292 was not considered in the context of Section 311 of that
Act which interpreted different expressions including "Existing Indian Law", and
the marginal note of Section 292 which was "Existing law of India to continue in
force". "Existing Indian law" and "Existing law of India" would have the same
meaning. But the observation made in the decision was without any discussion or
consideration as engaged the Apex Court at later point of time interpreting the
provisions of the Constitution of India. It has to be remembered however that
even without the benefit of Section 292 of the Government of India Act, 1935 or
Article 372 of the Constitution of India, all other laws which were non-
statutory but yet were having force in the territory of India prior to the
commencement of either the Government of India Act, 1935 or the Constitution of
India were to continue in force ipso facto and could have been only altered in
pursuance of the legislative authority conferred on the Legislatures or by any
other competent authority.

   18. For all such reasons, I would agree with the view expressed in the
referring order that uncodified personal laws not altered by usage or custom are
outside the purview of Part III of the Constitution. But if such personal laws
have been modified or abrogated by statute, or varied by custom or usages having
the force of law, their constitutional validity is liable to be tested, as the
case may be, on the anvil of Article 13(1) and 13(2) of the Constitution of
India.

   19. In view of the conclusion, objection taken by the respondents to the
vulnerability of the Act has to be negatived. The Act, being the statute law,
has to conform to the test of Article 13(1) to survive.

   20. With the deck so cleared, I would now proceed to examine the questions
raised relating to the vires of the provisions of the Act.

   21. In the intervention applications filed by the organisations who have
appeared in response to the notice and the press note, as also in the affidavits
in W.P. Nos. 5106 and 5585 of 1994 and 9717 of 1983, the uniform stand of the.
provisions of the Act being discriminatory has been taken.

   22. In W.P.M.P. No. 4511 of 1991 filed by Young Women Christian Association
for intervention in W.P. No. 9717 of 1983 it is stated that a seminar on uniform
civil code was arranged on 16-2-1991, which was participated by numerous members
of the Association as also by lawyers belonging to Christian Community. The
affidavit states the view to have been taken in the seminar that Christians have
been discriminated against in respect of family laws, particularly relating to
divorce, as Section 10 of the Act framed in 19th century by Englishmen is quite
anachronistic, the English people have since changed their own matrimonial laws
but that the Indian Christians are the victims of the continuation of the
anachronistic Act. The accompanying resolution inter alia presses for deletion
of Section 10 and to be substituted by the provisions of divorce under the Hindu
Marriage Act, 1955 or any other law and also presses for doing away with the
confirmation of the decree by the High Court under Section 17 of the Act.

   23. W.P.M.P. Nos. 4512, 5042, 5066 of 1991, 19289, 19290, 19291, 19292, 19293
and 19550 of 1989 have been respectively filed by the Telugu Baptist Churches,
Jangaon Field; Australian Baptist World Aid and Support A Orphan and 18 others;
Smt. R. Priya Kumar; Trust Association of Convention of Baptist Churches of
Northern circars, which convention has control over seven districts viz.,
Srikakulam, Visakhapatnam, Vizainagararn, East Godavari, West Godavari, Krishna
and Guntur with 200 churches under their control; Telugu Baptist Churches,
Nalgonda, G.B. Coles Centennial Telugu Baptist Churches, Kurnool; J. Alexander;
Sarnavesham of Telugu Baptist Churches, Nellore and A.P. High Court Women
Lawyers Association substantially on similar grounds. The intervenor-petitioner
in W.P.M.P. No. 4511 of 1991 has filed independent W.P. No. 5702 of 1994 along
with another Smt. Pathima Mary challenging the vires of Sections 10, 17, 22 and
55 of the Act. The Petitioner in W.P.M.P. No. 19292 of 1989 has independently
filed W.P. No. 5106 of 1994 questioning the validity of Sections 10 and 22 of
the Act claiming the provisions to be discriminatory as he was unable to get
divorce from his wife because of such provisions. All the voluntary organsations
claim to be working in the social field and particularly for Christians and
Christian women and object to the continuance of the archaic law governing
divorce and stress the need for its reformation. An affidavit has also been
filed in W.P. No. 9717 of 1983 by Rev. Dr. P. Victor Premsagar, Moderator,
Church of South India, Madras and the Bishop in Medak, Church of South India,
Medak, referring to the Bible, old testament and new testament stressing upon
the sacred nature of marriages, of there being no room for divorce in the
teaching of Jesus with the concession in Matthew 19:7 when there is a case of
adultery, and finally expressing the opinion that the conditions stipulated for
divorce for husband and wife may be revised so that both of them have the same
requirements for divorce under the law and that in view of the stress of the
modern society and the difficulties faced in families especially in relation to
dowry etc., which is prohibited in the Christian Church, it may be necessary to
consider other grounds than adultery, which may make it difficult for the
husband and wife and the children to live together in strained relationship.

   It is also seen from the decision in Ammini E.J. v. Union of India, , a
Special Bench case, which I shall have occasion to refer later on, that Union
Government, Ministry of Law, Justice and Company Affairs wrote a letter on
30-12-1994 to the Central Government Pleader of Kerala High Court that it had
received, through efforts of the Joint Women's Programme, a voluntary women's
organisation, comprehensive proposals in the form of draft bills for changes in
the personal laws of the Christian Community from the Christian Churches. Those
Bills include the draft Christian Marriage Bill, 1994 which seeks to
consolidate, amend and codify the law relating to marriage and matrimonial
causes of persons professing Christian religion and to repeal the Indian Divorce
Act, 1869 and Indian Christian Marriage Act, 18.72 among other things. The
grounds for divorce proposed in the aforesaid Bill are more liberal in nature in
tune with the changed social-economic conditions of the community and the
prevailing law relating to marriage and divorce available under the Special
Marriage Act, 1954. The grounds for divorce include desertion of the petitioner
by the other spouse for a continuous period of not less than two years
immediately preceding the presentation of the petition. It was stated in the
letter that Bill had the support of the Catholic Bishops' Conference of India
(CBCI) and 27 Member Churches of the National Council of Churches in India
(NCCI) and some other independent churches and that since the Christian Churches
have now come forward with necessary legislative proposal, the Government are
actively considering the same with a view to bringing in necessary legislation
as early as possible and the proposals are being studied and examined.

   24. Section 10 of the Act provides the grounds for dissolution of marriage. A
husband may file a petition for dissolution of the marriage if the wife has been
guilty of adultery since the solemnization of marriage, but so far as the wife
is concerned, the grounds are, apart from change of religion of the husband and
going through a form of marriage with another woman, of he having been guilty,
of adultery which must be incestuous or coupled with bigamy or of adultery with
marriage with another woman, or of 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. The other
grounds for divorce are rape, sodomy or beastiality. It is easy to perceive that
so far as the ground of adultery is concerned, the husband can maintain a
petition only on the ground of plain adultery of the wife but so far as she is
concerned she can present such petition only if the adultery is of a particular
nature or is associated with other conducts of the husband as specified. That
this is discriminatory does not require much persuasion to conclude as the
different treatment appears on the very face of the provision itself. Indeed the
view has been taken not only by Courts from time to time but also by the Law
Commission and by research and statistical studies. Section 22 of the Act though
provides for a decree of judicial separation does not make any provision for
ripening of the decree to one of divorce as a result of which parties to the
decree would have no liberty to marry again since the bond of marriage between
them continues to subsist. Not only the Law Commission has also recommended a
comprehensive legislation conferring equal rights on men and women professing
the Christian faith relating to marriage and divorce, but also the Universal
Declaration of Human Rights, 1948 adopted in Article 16 thereof that men and
women of full age irrespective of their nationality or religion are entitled to
equal rights as to marriage, during marriage and at its dissolution. The two
international covenants which came into existence for the purpose of giving
effect to the Universal Declaration were adopted by the United Nations, and
India has also accepted both the covenants. Much more than a century back the
Act had been modelled upon the then British Law - the Matrimonial Causes Act,
1857, but though the law in that country has far advanced doing away with the
archaic provisions and instead adopted equality between men and women in matters
of marriage and divorce, yet the law in India has remained static throughout all
these years and has failed to take note of contemporary development throughout
the world. The grounds for divorce in the English law under the Matrimonial
Causes Act, 1965 are listed in Latey on Divorce, 15th Edition in Para 2.90 in
Chapter 3 of which the first is "adultery of the other spouse during the
marriage". After the Matrimonial Causes Act, 1857 came the Matrimonial Causes
Act, 1923, which was passed on July, 17 and equalised the rights of husband and
wife to obtain divorce on the ground of adultery. Under the 1857 Act and prior
to it, a wife could not obtain a divorce on the ground of her husband's adultery
only, unless it was incestuous or bigamous or by way of rape; she had to
establish an additional ground of either cruelty or desertion for at least two
years. Since 1923, the rights of the parties of divorce were equalised and such
rights were maintained in the Judicature Act, 1925, Matrimonial Causes Act, 1950
and thereafter Matrimonial Causes Act, 1965. An article published in 52 Law
Quarterly Review in 1897 gives a discussion as to the development of law
relating to divorce upto 1857. The Catholic Canon Law which was being dealt with
by Ecclesiastical Courts regarded that marriages are indissoluble and would not
grant divorce a vinculo. The reliefs that were granted were either a declaration
of nullity of the marriage or a decree of separation a mensa et thoro. In
Reformatio legum Ecclesiasticarum, serious attempt was made by the reformers for
decree of divorce a vinculo to be authorised on grounds of adultery, malicious
desertion, mortal enimities and several ill-treatment and the wife to be placed
on equal footing with men. The reform failed to receive the sanction of the
Parliament. But Parliament at a later period of time, as has also been done by
the ecclesiastical authorities in the Catholic ages, were exercising power to
remedy the state of things which they recognised as being injurious to the
Society on a case to case basis. Then came the law of 1857 which has since
undergone the changes. In contrast it is seen from American Jurisprudence,
Volume 17, that the grounds for divorce in the statutes of the different States
of the federation very greatly and that in most States the statutes lead to
causes for absolute divorce, which are sometimes classified as those existing at
the time of marriage and those arising after it. The first classification
includes fraud, duress, impotency, bigamy and insanity or mental incapacity.
After the marriage, the grounds include adultery, cruelty or cruel and inhuman
treatment and the like, desertion, separation, the commission of, and conviction
for, crime, drunkenness and intemperance and non-support or failure to provide a
home. Some other statutes also provide for some other grounds. As regards
adultery as a ground, it is found that as a general rule adultery of either
party to a marriage is a ground for divorce, either from bed and board or from
the bond of matrimony or both. As regards the distinction between adultery of
husband and that of a wife it is stated," In this country, a distinction between
the adultery of the wife and of the husband has been made in the statutes of
some of the States. But, as a general rule, in the divorce statutes of the
several States no such distinction is made; under most statutes either spouse is
given the right to an absolute divorce for the adultery of the other. While it
may be true that the consequences of the wife's adultery may be more serious to
the family relation by reason of the risk of introducing spurious offspring,
nevertheless the statutes generally recognise no distinction between the husband
and the wife in respect of the gravity of marital offences when considered as
grounds for divorce; both parties stand alike before the law." The development
of rights of women for absolute divorce on the basis of equality with men have
been similar in France and Germany. It is seen from the New Schaff - Herzog,
Encyclopaedia of Religious knowledge edited by Samuel Macauley Jackson, D.D.,
L.L.d. Vol. 3,1953, that during the 17th century, almost simultaneously in
Holland and America the foundation of modern divorce law was laid. The law of
1792 in France, instituting civil divorce practically sanctioned free
dissolution of wedlock at the pleasure of the parties. The Code Napolion in 1803
substituted a more conservative provision allowing absolute divorce for five
causes. That was abrogated in 1816 and civil divorce was restored only in 1884.
But the liberal policy of France, as expressed in the Code Napolion, undoubtedly
had a powerful influence on the extension of civil divorce throughout Europe.
The Act of 1884 sanctioned absolute divorce, on the petition of either spouse,
for adultery, cruelty and condemnation to infamous penalty, if at the same time
the penalty be corporal; while separation from bed and board is still permitted.
In Germany, by the Imperial Code of 1900, absolute divorce was sanctioned for
five causes:(l) adultery; (2) attempt on the life of either spouse by the other;
(3) malicious desertion; (4) when either spouse has been guilty of grave
violation of the obligations based on the marriage or of so deeply disturbing
the marital relation through dishonourable or immoral behaviour that the
continuance of the marriage cannot be expected from the other, and (5) insanity
of three years standing.

   25. Article 16 of the Universal Declaration of Human Rights, 1948 adopted by
the General Assembly of the United Nations, to which India was a party, is: "Men
and Women of full age, without any limitation due to race, nationality or
religion, have the right to marry and to found a family. They are entitled to
equal rights as to marriage, during marriage and at its dissolution."

   In the 1965 session the Commission on the Status of Women considered a report
by the Secretary General on the dissolution of marriage, annulment of marriage
and judicial separation, based on information supplied by 44 Governments in
reply to a questionnaire. The purpose of the report was to enable the Commission
to determine to what extent Article 16 of the Universal Declaration had been
taken into account in national legislation. The Economic and Social Council, on
the basis of the Commission's recommendation unanimously adopted on the 16th
July, 1965 a resolution recommending the United Nations Member Governments to
take all possible measures to ensure equality of rights between men and women in
the event of dissolution of marriage, annulment of marriage and judicial
separation and recommended inter alia that both spouses should have the same
rights and should have available the same legal grounds and legal defences in
proceedings for divorce, annulment and judicial separation. The Commission on
the Status of Women in its session from 21st February to 11th March, 1966
prepared a Draft Declaration on the Elimination of Discrimination against Women.
On 26th July, 1966, the Economic and Social Council, acting on the
recommendation of the Commission unanimously adopted resolution transmitting the
draft declaration to the General Assembly and on 16th December, 1966 the General
Assembly unanimously adopted the resolution requesting the Commission on the
Status for Women to review the draft declaration bearing in mind the amendments
which have been submitted and taking into account the observations of the
Governments and relevant discussions. To that text adopted by the General
Assembly, India was a party. It had been elected as a member of the Economic and
Social Council on 15-12- 1965 for a period of two years ending on 31-12-1967.
The Commission prepared a draft declaration adopting the new text unanimously on
2nd March, 1967. The recommendation of the Commission was unanimously approved
by the Economic and Social Council on 29th May, 1967. The text so prepared by
the Commission was considered by the General Assembly, which unanimously
approved it on 7th November, 1967 as the Declaration on the Elimination of
Discrimination against Women. Clause 2 of Article 6 of the Declaration was as
follows:

     "All appropriate measures shall be taken to ensure the principle of
equality of status of the husband and wife, and in particular;

     Women shall have equal rights with men during marrige and at its
dissolution;"

   India also accepted the Universal Declaration on Human Rights on 10-4-1979 as
also the two international covenants on civil and political rights and on
economic, social and cultural rights - with regard to "equality"of rights and
responsibilities of spouses as to marriage, during marriage and at its
dissolution" (Article 23 of the Covenant on Civil and Political Rights). It has
been the argument that since India is a party to the declaration and the
Covenants, it is binding upon it and that the Indian law must be brought at par
to conform to the international standard. As regards the stand of the Law
Commission of India, we have been referred by Mr. V.L.N.G.K. Murthy to the
Special Bench decision of Ammini E.J. v. Union of India (30 supra) wherein their
Lordships have referred to the recommendations. Paragraph 18 of the judgment is
as follows:

     "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 marriage on almost 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 tine 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."

   As to the volume of the demand for change of the law an insight can be had
from the report of the Committee on the Status of Women in India titled "Towards
Equality" published by the Government of India, Dept. of Social Welfare,
Ministry of Education and Social Welfare in December, 1974 wherein at pages 418
and 419 appears Tables IV. 1 and 1 .A. The Tables show the percentage
distribution of the responses to the question "We would like to have your views
on some issues concerning marriage. Please tell us if you agree, partially
agree/ disagree, or partially disagree with what we now ask you." The respective
Tables are as follows:

"Table-IV.1 Percentage distribution of responses on views on issues concerning
marriage.

Question: We would like to have your views on some issues concerning marriage.
Please tell us if you agree, partialy agree/disagree, or partialy disagree with
what we now ask you.

Statements Agree Partially Disagree No response Total agree

15. Grounds of divorce

    should be the same

    for both husband

    and wife. 74.00 4.80 15.46 5.74 100.00 Table-IV.1.A- Percentage distribution
on responses on views on issues concerning marriage by male/female

              respondents.

Statements Agree Partially Disagree Disagree M F M F M F

15. Grounds of divorce

    should be the same

    for both husband

    and wife. 72.99 74.37 4.70 4.84 17.61 14.72

   The gaping and the heavily filled inequality in the provisions of Section 10
of the Act is telltale on the face of it. Henderson v. Henderson, was a case
where the wife sought a decree for divorce on the facts that soon after the
marriage the husband resorted to perverse cruelty, brought drunken young men to
the house and attempted to induce or force her to submit to their indecent
overtures, beat her and also starved her to compel her to live the life of a
prostitute. Because she resisted, she was forced out of the house for compelling
her to live with her parents, and after she left he had been leading a bad
immoral life, consorting with lewd women. The Court refused to confirm the
decree of divorce granted by the District Judge as though cruelty in the extreme
nature had been proved, yet it was insufficient to grant a decree as the law
specifically stated that "the petitioner must prove adultery coupled with
cruelty, or if another relevant section is to be resorted to, "adultery coupled
with desertion without reasonable excuse for two years or more." In the same
year, the same Special Bench had earlier decided the case T.M. Bashiam v. M.
Victor, . The Court had observed:

     "Before parting with the case, we may observe that the provisions of Act 4
of 1869 appear to be highly antiquated, and that they have not kept pace with
the provisions of similar enactments relating to marriage in other communities,
which are of a far more progressive character. This anomaly was noted by
Alagiriswami J. in S.D. Selvaraj v. Maty, 1968-1 Mad L.J. 289 at 294 and he
contrasted this Act with the English Matrimonial Causes Act which amended the
earlier laws in England, and "put the husband and wife on equal
footing.".........

     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 1869, as the Act governs a large body of persons in this country to see that
its provisions are rendered humane and up-to- date. Hence, with respect, we
entirely concur in the observations of Alagiriswami, J. in the decision referred
to. But the Courts have to administer the law as it stands, and as the law is
to-day, there can be no decree nisi in this case in favour of the wife."

   In Mary Soniz Zachariah v. Union of India, 1990 (1) KLT 130 the learned
single Judge noticed the recommendations made by the Law Commission from time to
time as also the response of the Government which had introduced a Bill in
Parliament in 1962, but it got lapsed and even thereafter in 1983 even though
some attempts were made for revival of the action by introduction of Marriage
Laws (Amendment) Bill, yet for some technical snag it did not proceed. The Union
of India in its counter affidavit had stated that the Law Commission had made
recommendation in its 90th report for making changes in Section 10 of the Indian
Divorce Act, but that the Government had not taken any decision about the
recommendation. The Court directed the Union of India to take decision, within
six months from the date of receipt of copy of the order, on the recommendation
of the Law Commission in its 90th report. Apparently, no action has been taken
on the direction. The dissatisfactory position of law was also noticed by a
Special Bench of this Court in R. Hemalatha v. R. Satyanandam, saying that it
was somewhat strange that in the second half of the 20th century a Christian
wife is not in a position to get a decree for dissolution of marriage on the
ground of cruelty only or adultery only. The Indian Divorce Act, 1869 has not
advanced along with the amendments to the English law made from time to time and
even the law relating to the divorce of Hindus has also undergone considerable
change. The court observed:

     "It appears to us to be incongruous to allow such discriminatory provisions
to remain in the Statute book after the coming into force of the Indian
Constitution guaranteeing equal protection of laws to every citizen and
prohibiting discrimination on the ground of sex. It is high time that suitable
amendments are made in the Indian Divorce Act which will bring it in line with
enactments like the Hindu Marriage Act. Even though a suggestion was made as far
back as 1968 in S. D. Selvaraj v. C. Mary, (1968) 1 Mad L.J. 289 and the same
was reiterated in 1970 in T.M.. Bashiam v. M. Victor, (SB) (32 supra) it is
surprising that no attempts

     have been made by the Legislature to make any suitable amendments to the
Indian Divorce Act."

   Yet, no effort has been made by the Union of India to change the law. Another
Special Bench of the Calcutta High Court expressed the same anguish in Swapna
Ghosh v. Sadananda Ghosh,

   observing:

     "I do not propose to decide these questions, which are otherwise of very
great importance, as this case can be disposed of even without determining those
questions and one of our well-settled self-imposed restraint is not to decide
any Constitutional question unless we cannot but. 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."

   Justice S.K. Mookherjee felt that the in-depth consideration by the
Parliament or appropriate State legislature of the procedural provisions of the
Indian Divorce Act for introduction of amending provisions is necessary though
he did not want to express any opinion on the other questions. Justice Ajit
Kumar Nayak considered the provisions of Section 17 of the Act to be a mid
Victorian vintage and observed that 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 the Act. The same Special Bench in the same year in Ratnish
Francis Toppo v. Violet Francis Toppo, made reference to the decision of Justice
Aligiriswami in S.D. Selvaraj v. C. Mary, 1968-1 Mad L.J. 289 (sic. (1968)
IMad.L.J. 289) expressing similar views. The judicial anxiety in the matter of
removing inequality between men and women was expressed by Justice Chinnappa
Reddy in Reynold Rajamani v. Union of India, 1968-1 Mad L.J. 289 saying:

     "My brother Pathak, J. has pointed out that the history of matrimonial
legislation has been towards liberalisation of the grounds for divorce.

     Inevitably so. The history of matrimony itself, in the recent past, has
been a movement from ritual and sacrament to reality and contract even as the
history of the relationship of the sexes has been from male dominance to
equality between the sexes. But the world is still a man's world and the laws
are man-made laws, very much so. We have just heard that in an advanced country
like the United States of America, the Equal Rights for Women Amendment could
not be successfully pushed through for failure to obtain the support of the
necessary number of States. Our Constitution- makers and our Parliament have
certainly done better. We have constitutional and legal equality for the sexes.
But even so, economic and social equality between the sexes appears to be a very
distant goal, x x x x x x x x x x x x x x x x x x x But, the march towards
equality and economic and social justice is still a 'long march' and meanwhile,
what of divorce by mutual consent? Yes, I agree with Miss Lily Thomas that
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?"

   Again in Ms. Jorden Diengdeh v. S.S. Chopra, he

   observed:

     "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 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 united. 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 time 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. In the meanwhile, let notice go to
the respondents."

   The Constitutional validity of Section 10 of the Act was examined at length
by a Special Bench of the Kerala High Court in Ammini's case (30 supra) from a
variety of aspects and found the Section to be ultra vires of Articles 14, 15
and 21. The learned Judges observed:

     "On an anxious consideration of the submissions made by the learned counsel
on behalf of the petitioners to which we have already made a detailed reference,
we are of the view that life of a Christian wife who is compelled to live
against her will though in same only as the wife of a man who hates her, has
cruelly treated her and deserted her putting an end to the marital relationship
irreversibly will be a sub human life without dignity and personal liberty. It
will be a humiliating and oppressed life without the freedom to remarry and
enjoy life in the normal course. It will be a life without the freedom to uphold
the dignity of the individual in all respects as ensured by the Constitution in
the preamble and in Article 21. It will be a life curtailed in various fields of
human activity. On the whole such a life can legitimately be treated only as a
life imposed by a tyranical or authoritarian law on a helpless deserted or
cruelly treated Christian wife quite against her will, which she is bound to
lead till her death tormented always by the feeling that she is remaining as the
wife of a man who has treated her cruelly, hated her and deserted her for no
fault her. Such a life can never be treated as a life with dignity and liberty.
It can only be treated as a depressed or oppressed life without the full liberty
and freedom to enjoy life as one would desire to lead it in the way Constitution
has ensured."

xxxx xxxx xxxx

     "We are also inclined to take the view that the impugned provisions in so
far as they compel a deserted or cruelly treated Christian wife to live
perpetually tied down to a marriage which has for all intents and purposes
ceased to exist as a result of desertion and cruelty shown by the husband
concerned are highly harsh and oppressive and as such arbitrary and violative of
Article 14 of the Constitution of India. For, even without a detailed
discussion, it can safely be stated without fear of any contradiction that no
purpose whatsoever will be served by continuing the relationship of marriage
which is irretrievably broken down as a result of desertion by the husband for a
continuously long period and cruelty meted out which would justify an order for
judicial separation."

   I have no hesitation to endorse these views.

   26. Marriage, though undoubtedly, is a personal event in the life of two
individuals, yet has been throughout the progress of civilisation is regarded
also as a social event and a matter of concern to the society since the
community exists only because of the interaction of the individuals who belong
to it and out of which interaction the peculiar trades, culture, ethnicity of
the society emerges. For fulfilment of a man's or woman's successful and
purposeful existence in the society success of the marriage is a predominant
factor and reverse of it if comes to existence would not only lead to discord
and lack of growth and flourishing of the individuals but likewise affect the
society and contribute to its chaos and discord. As has been often said, man is
essentially a social animal and it would be futile to expect a healthy society
to exist composed of unhealthy individuals in their body or mind. As has been
emphasised by the Apex Court, human existence presupposes existence with dignity
as human, but such dignity would be absent if the very psyche of the human is
destroyed. It is true that no doubt marriages should be enduring and frequent
break-up may be itself a social evil but where the marriage has conspicuously
failed, when the two persons are not compatible and there is no retrieval
situation. Where the continued association of the psyche of the two persons only
result in continued repugnancy and marriage is obviously seen having
irretrievably broken down, the tyranny of the law to see such of them to be
continuously tied to the bond of marriage is worst than the physical torture.
The person, may be man or woman who is compelled to undergo the endurance, may
see and end of the meaning of life and living would mean nothing more than
physical survival only. If marriages are made in heaven their continuance must
be heavenly and must not become a veritable hell indeed. The daily roasting in
such a hell, at the instance of law which was enacted 125 years back, for
whatever reason can never be taken as being consistent to Article 21 of the
Constitution of India and it would be rightfully the function of the Courts to
declare it so.

   27. It was said by Rainer Maria Rilke that "a good marriage is that in which
each appoints the other the guardian of his solitude", and in the words of
George Santyana in "The Life of Reason" that "It takes patience to appreciate
domestic bliss; volatile spirits prefer unhappiness". Mutual respect, love and
care are the foundations of a successful marriage where both the parties care
and love each other. But where these foundations disappear the marriage remains
only a legal bond and nothing more. Tennyson, in his Princess, said:

     "The woman's cause is man; they rise or sink together". But when that
mutualness is lost there should be no law only by the society or the State to
continue it and condemn the parties to unending drudgery. Likewise, I have also
no hesitation to hold the section to be inconsistent with Article 14. There
appears to be no justification to differentiate between the husband and the wife
to subject her to more onerous grounds to obtain divorce than the husband. The
opinion of the world body has been to declare and affirm the equality of men and
women in marriage, during marriage and at its dissolution. The member nations
including this country have also affirmed the covenants made in pursuance of the
declaration. As to how far these declarations and covenants become law of the
land I shall deal with a little later, but there is no difficulty in holding
that the discrimination in Section 10 of the Act between husband and wife is
patent without any reasonable basis of classification. Besides, the
discrimination is also based upon sex alone discriminating women against men and
hence the Section is also hit by Article 15 of the Constitution. Much prior to
the Universal Declaration of Human Rights it was stated in 1848 in the
Declaration of Sentiment in the First Woman's Rights Convention by Elizabeth
Cady Stanton: "We hold these truths to be self-evident, that all men and women
are created equal."

   28. A decision had been advanced, to save the provision, differentiating
between adultery committed by a man and by a woman. A single Judge of the Madras
High Court took the view in Dr. Dwaraka Bai v. Prof. Nainan, of the Section
being not

   discriminatory as adultery by wife may lead to the consequences of a spurious
offspring being sprung upon the husband whereas adultery committed by the
husband would have no such consequences. With respect I am unable to support the
view and instead find myself in complete agreement with the contrary view taken
in Swapna Ghosh's case (35 supra) and Ammini's case (30 supra). Both the
decisions have taken the view that even if such a basis for making a distinction
between the husband and wife could have been available, yet it would be
differentiation based upon sex alone which is prohibited under Article 15 of the
Constitution. Justice Bhattacharjee in the Calcutta case (35 supra) rightly
referred to C.B. Muthamma v. Union of India, AIR 1979 SC 1868 wherein a
provision of the Indian Foreign Service (Conduct and Discipline) Rules, 1961
providing that no married woman shall be entitled to be appointed to the service
and that any time after the marriage a woman member may be required to resign
from the service, if the Government is satisfied that her family and domestic
commitments are likely to come in the way of the due and efficient discharge of
her duties, were held to be discriminatory not on the ground of sex only but
also on the ground of consequential impairment of their usual capacity as a
result of marital life.

   29. An argument was advanced by Mr. L. Ravichander appearing for the
respondents, relying on Anil Kumar Mahsi v. Union of India, that having married
under the Indian Act and accepted its discipline the parties cannot be heard to
complain against its rigours. In the case the Supreme Court was examining the
contention advanced by a husband of the provisions of Section 10 of the Act
being discriminatory as besides adultery two other grounds are made available to
the wife for divorce though such grounds are not available to a husband. The
Court observed, in the context, that there was no discrimination as 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 cannot be faulted
to have made available two more grounds to her for divorce. The observation of
the Court that the rigours of the Section cannot be complained of, having
married under the Act, was only made in that context and is not a general
proposition that the provisions of the Act cannot be declared ultra vires if
they are actually found to be so. It is well known that fundamental rights
cannot be waived .Mr. Kannabhiran, has rightly invited our notice in the context
to Olga Tellis v. Bombay Municipal Corporation, (paras 28 & 29). It has also
been

   rightly pointed out in the Kerala decision (paragraph 38) (30 supra) while
repelling the argument, that it may not be possible for all Christians to marry
or register their marriage under the Special Marriage Act and that if the
parties marry in the Church, the registration thereafter under the Special
Marriage Act can be only done through consent of the parties.

   30. Mrs. Sarathy has also advanced the argument of Section 22 of the Act
being discriminatory as the decree for judicial separation never matures to a
decree of divorce. Under the Section a decree for judicial separation is
available to either of the parties on the only ground of adultery or cruelty or
desertion, whereas a decree for dissolution under Section 10 of the Act is
possible, so far as the wife is concerned, only if the cruelty or desertion is
coupled with adultery. A decree for judicial separation is perpetual in
continuance disentitling the parties to sever the marriage bond and become
independent or seek solace in fresh alliance. The further fallacy in the section
is that whereas the husband can get either a decree of dissolution or judicial
separation on the ground of adultery of the wife, she is entitled only to
judicial separation for the adultery of the husband. To bring home the point,
reliance has been placed on the observation of Justice Chinnappa Reddy in
Reynold Rajamani's case (37 supra) and R. Hemalatha's case (34 supra).

   31. Mr. Sarathy has also addressed on the question reiterating the same
points and also contended, in a general way, the provisions of Sections 10 and
22 of the Act to be ultra vires.

   32. Mr. Kannabhiran, while maintaining the provisions of the Act to be ultra
vires, has contended the decision of Madras High Court in Swamidoss Joseph v.
Miss Edward, to be not correct to hold that by virtue of Section 7 of the Act,
the contemporary law in England regarding divorce are available to be applied by
the Indian Courts and that Section 7 of the Act is no longer in the statute
book. It is also true, as has been noticed earlier, that the present law of
divorce in England permits desertion by the other spouse for a period of at
least three years immediately preceding the presentation of the petition and
also cruelty as grounds for divorce. Under the law so framed in 1965, it is only
reenactment of the provisions of the Matrimonial Causes Act, 1950. Hence, since
at least 1950 the law in England has adopted the two grounds also as grounds for
divorce. But even though the law of England has become as such, yet it does not
become ipso facto the law of this land. An attempt by different Courts of the
country to incorporate the contemporary law of England into India by virtue of
Section 7 of the Act was emphatically negatived in Reynold Rajamani's case (37
supra). Section 7 of the Act provide that subject to the provisions of the Act,
the High Courts and District Courts shall, in all suits, 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. The
Supreme Court negatived the argument that Section 7 of the Act authorises
incorporation of the provisions of Section l(2)(b) of the Matrimonial Causes
Act, 1973 of England to Indian cases. Justice Chinnappa Reddy who delivered a
separate Judgment, concurring with Justice Pathak and Baharul Iglam, observed:
(Reynold Rajamani's case)

     "I agree with my brother Pathak, J. that 'mutual consent' is not a ground
for divorce under the Indian Divorce Act and that the provisions of Section
1(2)(d) of the British Matrimonial Causes Act, 1973 cannot be read into the
Indian Divorce Act merely because of Section 7. It is unthinkable that
legislation whenever made by the Parliament of a foreign State may automatically
become part of the law of another sovereign State. Legislation by incorporation
can never go so far. Whatever interpretation of Section 7 was permissible before
August 15, 1947 when the British Parliament had plenary powers of legislation
over Indian Territory, no interpretation is now permissible which would
incorporate post - 1947 British laws into Indian law."

   Yet, there is no denying of the fact that absolute denial of dissolution of
marriage in spite of adultery, cruelty or desertion amounts to compulsion of
force, sub- human existence because of relentless injunction of the statute, a
perpetual bar to men and women professing the Christian faith, to continue with
ordeal of matrimony even though the marriage itself has failed and a decree for
judicial separation has been passed either for adultery or desertion or cruelty.
It is indeed substitution of statutory cruelty for individual cruelty. Section
26 of the Act empowers either the husband or the wife to present petition to the
Court to seek reversal of the decree on the ground that it was obtained in his
or her absence and that there was reasonable excuse for the desertion, where the
decree has been obtained on the ground of desertion. Thus, where the decree is
on the basis of desertion, the wife or the husband has to remain under the
constant apprehension that at any time a petition may be made to reverse the
decree as there is no time limit set in the section. It is the consistent view
taken that where no period of time is fixed in the statute for some action to be
taken, the action must be taken within a reasonable period. It may hence be held
that a petition for reversal of the decree for judicial separation, when it
lies, has to be presented within a reasonable period only. There is, because of
these considerations, no escape from the conclusion that the provision of
Section 22 insofar as it does not provide to make the decree absolute is counter
to the scheme of Article 21 of the Constitution.

   33. The Special Bench of Kerala High Court in Ammini's case (30 supra)
considered the question of Section 22 of the Act and took the view that as the
spouses belonging to all other religions governed by Hindu Marriage Act, 1936
(sic. 1955), Parsi Marriage and Divorce Act, 1936, Muslim Wives under the
Dissolution of Muslim Marriage Act, 1939, Special Marriage Act, 1934 and Foreign
Marriage Act, 1969 are entitled to get dissolution of their marriage on the
ground of cruelty or desertion for the periods fixed by the respective Acts,
denial of such ground metes out a discriminatory treatment to Christian spouses.
The Court held the absence of suitable provisions recognising cruelty and
desertion for a reasonable period as grounds for dissolution of marriage in the
Act to be discrimination based solely on religion and as such violative of
Article 15 of the Constitution. I find myself also in concurrence with the
views.

   34. As regards the vires of Section 10 of the Act, we have already found the
provisions of the Section, so far as it discriminates the wife, to be ultra
vires of Articles 14, 15 and 21 of the Constitution. It is the submission of Mr.
L. Ravichander that the Court is not to declare the provisions ultra vires but
that it can only recommend, as had been done in T.M. Bashiam v. M. Victor (32
supra), R. Hemalatha v. R. Satyanandam (34 supra), Swapna Ghosh v. Sadananda
Ghosh (35 supra) and in Ramesh Francis Toppo v. Violet Francis Toppo (36 supra),
to the legislature to take appropriate measures to remedy the situation. I have
no hesitation to reject his submission outright. It is too late, after the
development of the Constitutional Jurisprudence for nearly, half a century, to
contend that Courts are powerless to strike down a statutory provision if it is
found to be ultra vires. Article 13(1) of the Constitution itself mandates the
Courts to declare all existing laws as ultra vires if they are inconsistent to
Part III and that is precisely what I have found Section 10 to be. Even
otherwise, as was noticed by the Kerala High Court in the Special Bench case (30
supra), direction had been issued by that Court on 13-12-1990 to the Central
Government to take a final decision on the recommendations of the Law Commission
in its 90th report for making amendments to Section 10 of the Act. Successive
decisions also emphasised the fact of no action having been taken. Instead, the
communication which had been issued by the Union Government on 30-12- 1994 to
the Central Government Pleader again stating that the Government was examining
the question of bringing in a comprehensive legislation was produced before
their Lordships during hearing of the case. A provision in the statute which is
otherwise ultra vires cannot be left to be in the statute without it being so
declared and indeed if the Court accedes to such submission it would be failing
in its duty as the Constitutional Court.

   35. Having held so, it has to be considered how far Section 10 of the Act can
be held to be ultra vires. I find myself in complete agreement with their
Lordships of the Kerala High Court, for the reasons stated by them that the
entire Section cannot be struck down as it will result in more harm than good
and that it is also not necessary to do so. Repetition of the same
considerations is not warranted here. The offending portions of the Section are
clearly severable and the view must rightly be taken that the words and the
phrases "incestuous" and "adultery coupled with" as used in Section 10 of the
Act are only to be struck down. The remaining portion of the Section remains
perfectly workable with the discrimination against wives removed and enabling
them to present petitions for divorce stating either of the grounds of the
adultery of the husband or cruelty practised by him or desertion by him for two
years or upwards.

   36. As regards the fourth question referred, the position of law has been
well settled by the decisions of the Apex Court. In Jolly George Varghese v.
Bank of Cochin, , the question that arose before the Court was whether a
contractual liability could be enforced by imprisoning a debtor in the teeth of
Article 11 of the International Covenant on Civil and Political Rights which
provides that no one shall be imprisoned merely on the ground of inability to
fulfil a contractual obligation. Justice Krishna Iyer speaking for the Court
said that though Article 51(c) of the Constitution obligates the State to
"foster respect for international law and treaty obligations in the dealings of
organised peoples with one another", yet until the municipal law is changed to
accommodate the covenant what binds the Court is the former and not the latter
and observed:

     "The positive commitment of the States parties ignites legislative action
at home but does not automatically make the covenant an enforceable part of the
corpus juris of India".

   In a later case, a Larger Bench of the Supreme Court in Gramophone Co. of
India Ltd. v. Birendra Bahadur Pandey, interpreted that the rule of
international law is to be taken as incorporated in the municipal law if there
is no conflict between the two. Justice Chinnappa Reddy speaking for the Court
observed:

     "There can be no question that nations must march with the international
community and the Municipal law must respect rules of International law even as
nations respect international opinion. The comity of Nations requires that Rules
of International Law may be accommodated in the Municipal Law even without
express legislative sanction provided they do not run into conflict with Acts of
Parliament. But when they do run into such conflict, the sovereignty and the
integrity of the Republic and the supremacy of the constituted legislatures in
making the laws may not be subjected to external rules except to the extent
legitimately accepted by the constituted legislatures themselves. The doctrine
of incorporation also recognises the position that the rules of international
law are incorporated into national law and considered to be part of the national
law, unless they are in conflict with an Act of Parliament. Comity of nations or
no Municipal Law must prevail in case of conflict. National Courts cannot say
"yes" if Parliament has said no to a principle of international law. National
Courts will endorse international law but not if it conflicts with national
law."

   In saying so, reliance was also placed on an earlier case of the Supreme
Court in V/O. Tractoro-Export v. Tarapore & Co., . Mr. Bubic Kariusz v. Union of
India,

    (para 10) cited by the respondents do not lay down

   any different proposition. While the position of law is thus clear, yet in
view of the decision reached regarding vires of the Sections of the Act the
question of any conflict between the declaration of human rights and two
international covenants do not arise.

   37. In the result, the petitions are allowed to the extent indicated. No
costs.

   ORDER

   S.R. Nayak and Lingaraja Rath, JJ.

   38. I have had the advantage of reading the draft judgment prepared by my
learned Brother, Lingaraja Rath, J. in this batch of Writ Petitions. While
concurring with the findings recorded by Lingaraja Rath, J. on the questions
referred to us by the Division Bench and the reliefs granted, I wish to add a
brief note: In Krishna Singh v. Mathura Ahir (4 supra), a two Judge Bench of the
Supreme Court has ruled that Part III of the Constitution of India does not
touch upon the personal laws of the parties and that in applying the personal
laws of the parties, the Judge could not introduce his own concepts of the
modern times, but should have enforced the law as derived from recognised and
authoritative sources of Hindu Law, i.e., Smritis and Commentaries referred to,
as interpreted in the Judgments of various High Courts, except where such law is
altered by any usage or custom, or is modified or abrogated by statute.
Lingaraja Rath, J. in substantial terms, has declared the law to the same effect
having dealt with questions 1 and 2 referred to the Full Bench. But, his
Lordship's

   conclusions/declarations are preceded by, if I may say so, an elaborate and
in-depth treatment of theoretical writings, precepts and Judge- made law
touching upon those questions. I suppose, my Learned Brother, has undertaken
this juristic exploration in the context of a submission that the Apex Court's
declaration of law in para 17 of the judgment in Krishna Singh's case is not
supported by reasons. It is trite to state that we are obviously bound by the
declaration of law by the Apex Court, not only because of the mandate of Article
141 of the Constitution but also because of the "authority of precedents". The
declaration of law by the Supreme Court, whether reasoned or not, is always
binding on us by force of Article 141 of the Constitution. I, therefore, do not
find any necessity to give additional reasons in support of the findings
recorded on questions 1 and 2.

   39. Resolution of questions such as what is "law"; whether non-statutory,
non-customary, non-judge-made personal law is a "law" in modern jurisprudential
sense of the term and whether anything appreciable could remain as residue in
any personal law if the statutory portion, the customary portion and the case-
law portion of such personal law are attracted by the expressions "all the law
in force" in Article 372 (1) and "all laws in force" in Article 13(1) of the
Constitution is not necessary for the purpose of deciding the constitutional
validity of Section 10 of the Indian Divorce Act. The Apex Court itself may
consider these questions if there is any request for reconsideration of the
observations of the learned Judges of the Supreme Court in para 17 of the
Judgment in Krishna Singh's case (4 supra), but we cannot do that because of
propriety. Section 10 of the Indian Divorce Act being a statute law, its
constitutionality can be determined on the touchstone of Part III of the
Constitution as held by the Supreme Court in Krishna Singh's case (4 supra) and
in this batch of Writ Petitions we are not called upon to pronounce our judgment
upon constitutional validity of any non-statutory or non-customary or non- Judge
made personal law of the Christians.

   40. I, therefore, rest my concurrence with the findings recorded by Lingaraja
Rath, J. on questions 1 and 2 referred to us by the Division Bench only on the
basis of declaration of law by the Supreme Court in para 17 of the Judgment in
Krishna Singh's case and I shall not be understood to have concurred with the
other reasons given by my learned Brother in support of the findings recorded by
him on questions 1 and

   2. Except to the extent indicated above, I am in agreement with learned
Brother, Lingaraja Rath, J. in all other respects.

   ORDER

   B.K. Somasekhara, J.

   41. The final decision of both of my learned Brothers in their separate
judgments cannot but command acceptance. The erudite and scholarly exploration
of learned brother Justice Rath is beyond the scope for improvement. That such
treatment of the questions involved in view of the Precedent of the Hon. Supreme
Court as opined by the learned brother Justice Nayak to be unnecessary may not
be correct in the nature of the seriousness of the questions involved requiring
an in-depth analysis to fortify judicial reasoning supplementing the inner res
in the precedent. Any sensitive and complex issue involves perambulatory and
circumventive reasoning process. Injudicial reasoning nothing is unnecessary.
The law of precedents has the solid foundation in reasoning. The strength of the
ratio decidendi depends only on the strength of reasoning. The quality of
reasoning is directly proportionate to the quality and quantity of reasons. What
brother Justice Rath has done is very much within the jurisprudential concept of
precedents which commands total approval by this Full Bench perhaps to
supplement it with these additional reasons of my own.

   42. The whole approach of the matter testing Section 10 of the Indian Divorce
Act 1869 (Act 4 of 1869), (in short the Act) on the anvil of the touchstone of
Ch.III and in particular Articles 13 and 14 of the Constitution of India, in
these cases may be different from those involving the questions whether
customary law or personal law is beyond the pale of constitutional challenge.
Because the question is not whether the Act is such but whether it is "the Law"
and has the force of law whether it was the law in force when the Constitution
came into force. If one or all of them answers the description, the Act cannot
sustain its existence within the constitutional challenge. The test is also not
in the sensitive area of common civil code for the country. To do anything
beyond the scope of the Lis would be an exercise in futility. The plethora of
precedents are by themselves may not serve the real purpose of the probe.

   Article 13 of the Constitution of India to be luxuriously recorded herein
reads:

     "Article 13: Laws inconsistent with or in derogation of the fundamental
rights: (1) All laws in force in the territory of India immediately before the
commencement of this Constitution, in so far as they are inconsistent with the
provisions of this Part, shall, to the extent of such inconsistency, be void.

     (2) The State shall not make any law which takes away or abridges the
rights conferred by this Part and any law made in contravention of this clause
shall, to the extent of the contravention, be void.

     (3) In this article, unless the context otherwise requires-

     (a) "law" includes any Ordinance, order, bye-law, rule, regulation,
notification, custom or usage having in the territory of India the force of law;

     (b) "laws in force" includes laws passed or made by a legislature or other
competent authority in the territory of India before the commencement of this
Constitution and not previously repealed, notwithstanding that any such law or
any part thereof may not be then in operation either at all or in particular
areas;

     (4) Nothing in this article shall apply to any amendment of this
Constitution made under Article 368."

   Similarly Article 14 reads:

     "14. Equality before law: The State shall not deny to any person equality
before the law or the equal protection of the laws within the territory of
India".

   Since Section 10 of the Act is in challenge the repetition inevitably to
read:

     "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."

   43. To superimpose the Act in the expressions in Articles 13 and 14 of the
Constitution of India so stressed above viz., "all laws in force", "law to
include", and "laws in force" will conclusively determine the vires of the
provision in challenge. So the question is whether the Act is one of them viz.,
(a) law, (b) anything included in law as such and (c) the law in force. Strictly
speaking law is not defined in the Constitution, except repeated copiously and
liberally in various Articles and explained in Article 13. (to illustrate the
use of such expressions is in the Articles 2 to 4, 10, 11, 13, 14, 19 to 23, 25,
26, 30, 31(A), 31(B), 31(C), 32 to 35, 37, 44, 72, 73, 84, 97, 102, 104, 110,
114, 116, 119, 123 to 125, 132 to 143, 145, 147, 148, 158, 161, 164, 165, 169,
172, 186, 187, 189 to 191, 194, 195, 200, 202, 204, 206, 209, 210, 213(2), 217,
221, 222, 225, 226, 228 to 231, 235 etc). Even in the preamble of the
Constitution being the aspirations of the people of India, there is no such
expression but the expression "justice" to mean that all such expressions in the
Articles relating to law should be read within the meaning of "justice". So
whatever meaning is imported to the expression "law" or such expressions to come
within "law" should subserve the intendment of "justice" in the preamble. Even
assuming that 'law' is defined in Article 13 of the Constitution of India it is
said to be a wide and inclusive definition not necessarily a law enacted by the
legislature. It is also said to be an extended definition in order to forestall
a possible contention that law can only mean law enacted by legislature
(Kesavananda v. State of Kerala, AIR 1972 SC1461) and page 237 and 238 in
Constitutional Law of India by H.M. Seervai 3rd Edition of 1983, Vol. No.I). The
expression in Sub-clause 3 of Article 13 "unless the context otherwise requires"
is also an indication of not excluding any other meaning of "law" as is
generally understood by one and all including the lawman and layman within the
jurisprudential concepts. The emphasis is thus in the context is only to realise
the import of the implications of such expressions which are the subject matter
dealt with in the science of law i.e., jurisprudence.

   44. The legal theory attempts to answer the question "what is law", as a need
to provide a definition of law which springs from the necessity of clarifying
the most basic of all legal concepts, the concept of law itself. A legal concept
including the concept of law is nevertheless the basic concept of jurisprudence.
Although the majority of the legal problems may not have reference to the
concept of law it does not mean that the concept is entirely without practical
significance, as the law has itself a practical legal use as it is one high in
emotive content. Despite the definition of law consuming so much of time and
energy its practical utility cannot be lost sight of (page 9 to 12 Ch.I. in
Salmond on Jurisprudence, 12th Edition of 1966 reprinted in 1995). As a part of
imperative theory of law of Austin, it is the command of the sovereign, the main
and the real source of law (page 25 of Salmond on Jurisprudence supra). As a
positive law being the expression of the will of the State through the medium of
legislature the Austinian thinkers as legal realists look the law as the command
of the sovereign which need not be the Parliament but any form of sovereign
including the Courts (page 35 of Salmond on Jurisprudence supra). The whole
theory lies in the legal realism in the concept of positive law as the real
source of law. The classified legal sources are thus four innumber viz., (1)
enacted law, having its source in legislation, (2) case law having its source in
precedent, (3) customary law having its source in custom and (4) conventional
law having its source in agreement, (pages 113 and 114 of Salmond on
Jurisprudence supra). Inevitably the expression "law" in Article 13 of the
Constitution of India and in other Articles unless the context otherwise means,
should sprout from one of the sources supra. Legislation is that source of law
which consists in the declaration of legal rules by a competent authority. The
term is sometimes used in a wide sense to include all methods of law making. To
legislate is to make new law in any fashion. In this sense any act done with the
effect of adding to or altering the law is the act of legislative authority and
soused legislation includes all the sources of law and not merely one of them.
(Austin on Jurisprudence 3rd edition page 555). In this sense every act of
Parliament is an incident of legislation, irrespective altogether of its purpose
and effect (page 115 of Salmond on Jurisprudence supra). An Act of Parliament or
any legislature by means of an enactment is styled as "statutory law". It is
also being popularly called "enacted law" having its embodiment in authoritative
formulae - the littera scripta - to constitute a part of the law itself, the
legal authority therein possessed by the letter no less than by the spirit of
the enactment, (pages 131 and 132 of Salmond on Jurisprudence). The emphasis
herein is to merge all other sources into the first source of enacted law when
once they are attributed the sovereign seal by a competent legislature. The
enacted law would be thus synonymus to statutory law or legislative law. In that
sense the Constitutional law is also an enacted law. The doctrine of vires or
non-vires by interpretation applies only to such law and for no other law.
Perhaps that may be one of the tests for determining whether a law is statutory
law or not. No law without legal sanction is law from the point of view of
imperative theory and rightly too and it is the statutory law or enacted law
which fits into such a concept (the earliest definition of law thus emerges as
'that which is laid down, ordained or established. A rule or method according to
which phenomena or action co-exist or follow each other. That which must be
obeyed and followed by citizens subject to sanctions or legal consequences is a
"law" (L.C. page 1028 in Black's Law Dictionary 4th edition of 1951). It is also
a rule or enactment promulgated by the legislative authority of the State (L.C.
page 1876 Bouviers's Law Dictionary 3rd revised edition of 1914 Vol.2). A
statutory law, in short, is also called 'statute' which is a law established by
the act of legislative power, an act of the legislature the written will of the
legislature necessary to constitute it the law of the State (this expression was
used for the first time in an Act of 55 Henry III; 21 Law L Mag. & Rev. 310
(R.C. 3129 Bouvier's dictionary Vol.2 supra). The word 'statute' is used to
designate the written law in contra distinction to the unwritten law. Anything
beyond all this can never be the law in the true sense of the term unless the
context otherwise requires to be understood as mentioned in Article 13 to
enlarge the scope with the aid of the explanation in sub-cl.(b) and (c). In
other words, the law as a first measure would be the enacted law or statutory
law and all other laws from different sources when once enacted, becomes
statutory law. The combined effect of Articles 13 Sub-Clause 1, 13(3)(b),
Article 372 Expln.I, Article 366, Article 366(10) and Article 19(2) to (6) when
they use the expressions "law in force", 'existing law", "any law", mean one and
the only legal concept, that is "law", (page 238 Constitutional Law of India of
Seerwai supra). In Edward Mills Company Limited v. Ajinail, , the Supreme Court
held that there was no material difference between the two expressions "existing
law" and "law in force". Equally so by virtue of the inclusive definition of
"law" in Article 13(b), custom or usage having the force of law is held to be
"law" in Dasaratharama Rao v. State of A.P., AIR 1961 SC 560 (Appears to be same
as foot note 12) and Baijnath v. Ram Nath and Ors, .

   45. There appears to be an inhibited allergy to treat customary law or
personal law within the expression of "law" for the reasons best known to the
users. But the law in the true sense of the term has no such inhibitions. The
law will declare any law as "law" uninhibited of the consequences except to
maintain the rule of law. Both jurisprudentially and constitutionally, custom
being the source of law is "the law" called "customary law". Strictly speaking
the personal law has no separate classification except to come within "customary
law" of particular group or individuals to distinguish from territorial laws
within the concept of "Lex loci" (Jaw of the place to this lex loci docimili may
be added R.C. page 1056 Black's Law Dictionary Supra) and "lex fori" (law of the
forum or the Court i.e., the positive law of the State, Country or system, the
Court where the suit is brought or remedy sought is an integral part - page 1055
L.C. Black's Dictionary supra). The former annexes the subject the right to
carry his law wherever he goes and the latter not and that is the test or
personal law being capable of moving with the person. The concept is also the
product of territorial and extra-territorial law. The law in a territory capable
of carrying by a subject extra territorially may become personal law and in that
sense the customary law of an individual or a group intra-territory capable of
extra-territorial legal sanction may be styled as "personal law". Whether
codified or not, such a law as personal law may be an extra territorial law.
That is how in a limited sense, such a law can be personal law for a definitive
purpose and not for legal sanction. "The proposition that a system of law
belongs to a definite territory means that it applies to all persons, things,
acts and events within that territory" and "in other words to say that a legal
system belongs to a defined territory means partly that its rules do not purport
to apply extra territorially to apply and enforce them do not regard them as
applying them extra territorially and partly that other States do not so regard
it". The proposition that a system of law apply only to persons, things, acts
and events within a defined territory is not a self evident truth: it is merely
a generalisation from the practice of States. Also it is a very rough and
imperfect generalisation. (page 77 of Salmond on Jurisprudence supra). Such a
concept may not be alien to Indian personal laws also. It may be added that in
India personal systems of law survive even at the present day, though they are
gradually being superseded by legislation which either unifies the law of two or
more races (particularly of course Hindus and Muslims) or applies to the country
on a territorial basis. Conflicts of personal law still causes difficulties for
which there are no satisfactory rules (A. Gledhill in Whither Indian Law)
(School of Orintal African Studies, University of London, 1956 - Quoted on page
82 of Salmond supra).

   46. Although custom is an important source of law in early times, its
importance continuously diminishes as legal system grows. As an instrument of
the development of law, it has now almost ceased to operate, partly because it
has to a large extent been superseded by legislation and precedent and partly
because of the stringest limitations imposed by law upon its law creating
efficacy. Law was either the written statue law or unwritten common or customary
law. Judicial precedent was not conceived as being itself as legal source at all
for all it was meant to operate as evidence for which the common law proceeds.
Lex et consuet udo Amgliae was the familiar title of the legal system. The
common law of the world and the common law custom of the world were synonymous
expressions, (page 189 of Salmond supra). Blackstone appears to have concluded
the custom as a source leading to the codified law to seek legal sanction viz.,
"the municipal law......may with sufficient propriety be divided into two kinds;
the Lex Non-scripta, the unwritten or common law or lex scripta the written or
written law. The written law, includes not only general systems or the common
law so called but also certain parts of the kingdom and likewise those
particular laws that are observed only in certain Courts and jurisdictions"
(Hale-History of the Common law Ch.II; Blackstone Commentaries I page 63). The
defence of customary law to be a source of law and to have the force of law can
be rationalised. Custom is frequently the embodiment of such principles (pages
190 to 192 of Salmond).

   47. Among the two kinds of customs viz., legal and conventional, the former
is one whose legal authority is absolute-which is absolute and possesses the
force of law. Legal custom itself is of two kinds being either local custom
prevalent and having the force of law In a particular locality only or the
general custom of the world in force as law throughout a country. A legal custom
with or without codification having legal sanction presumably will have force of
law and therefore can be fitted into 'law' pure and simple and that appears to
be the constitutional intent in Article 13(3)(a).

   48. With the backdrop of the concept and the legal implications supra, we are
to test in the first instance what kind of law the Indian Divorce Act (the Act)
is. That it is a 'law' of any category cannot be but beyond the pale of doubt
whether to bring it within the definitive law in jurisprudence or the law within
the Articles of the Constitution of India. If it is out of either one or the
both, the challenge or otherwise for the benefit or no benefit of the persons
governed by it becomes totally redundant. Then the whole exercise even to
consider it for any purpose in a lis is a futility. Without being an integral
part of the Indian legal system, the Act has no utility to anybody and the
Courts cannot even think about it. The existence of law being a question of fact
under Section 57(l) of the Evidence Act, the Act fundamentally should exist for
testing vires or otherwise of the Constitution. In order that the persons
governed by the Act to seek the relief from Indian Courts under the Constitution
of India should fundamentally concede the Act to be the law within the Articles
of the Constitution to be administered with the justice of the country. So the
first question whether the Act is 'the law' of the country under the
Constitution of India requires to be answered. The Gazette of Calcutta 1863 at
page 173 published the objects and reasons of the Act and the select committee
published this report in Gazette of India 1869 page 192, Calcutta Gazette in
Supplement of 1862 page 463 ibid 1863 and in Gazette of India 1869 supp. page
291 wherein it was disclosed that the Council wanted to bring in a law relating
to the Divorce of persons professing the Christian religion in India and to
confer upon certain Courts jurisdiction in matters matrimonial and Indian
Divorce Bill 1869 was passed into Act4 of 1869 (vide Gazette of India 1869 Supp.
page 291) with the name and style 'The Indian Divorce Act 1869' (Act 4 of 1869).
Being not exhaustive in the matter it was intended to amend the law relating to
divorce and matrimonial causes of persons professing the Chritstian religion in
India. The object of it was incorporated in the preamble; "Preamble: Whereas it
is expedient to amend the law relating to the divorce of persons professing the
Christian religion, and to confer upon certain Courts jurisdiction in matters
matrimonial......However the extent of power to grant relief generally on the
Courts was incorporated in Section 2 by the Act 25 of 1926 and by the Act 30 of
1927 in Section 2 as follows:

     "Extent of power to grant relief generally:- Nothing hereinafter contained
shall authorise any Court to grantany relief under this Act except that the
petitioner or respondent professes a Christian religion....."

xxxx xxxx xxxx

xxxx xxxx xxxx

   With so much of emphatic expression the provision confined the applicability
of the Act to give relief only to the petitioner or respondent professing the
Christian religion and no other person belonging to any other religion. It is
also apparent that it was intended for the benefit of the persons professing the
Christian religion in India and not elsewhere. Undoubtedly the law in relation
to the divorce and the matrimonial matters of the persons professing Christian
religion was codified under the Act and for no other persons: It was enacted by
a competent legislature or the law making body viz., the Council, to make it an
enactment or a statute within the meaning of codified law or statutory law. No
provision of the Act speaks of custom, convention, usage, practice etc., to be
codified therein much less no such source of law is saved therein. It came into
force on 1-4-1869. So the act which was applicable to such persons in India from
1-4-1869 was a pure and simple statutory law, within the meaning of
Kesavananda's case (48 supra) nothing to do with their custom etc., to be
governed by the provisions of the Act as long as they professed the Christian
religion. A petitioner or a respondent approaching the Court for relief under
the Act was in the first instance to plead and prove that he/she professed the
Christian religion as a matter of fact. Prima facie the law is a territorial law
for such persons within the territory of India and in that sense it was the
personal law of such persons as it related to divorce and matrimonial matters.
But still it was a law simpliciter within the Austinian command of the sovereign
school of law. To attribute the complexes of customary law or personal law to
such a matter would be an antethesis of the science of law or the jurisprudence,
much less the Constitutional Law or Administrative Law. There is nothing to
indicate in the entire enactment to attribute such a texture. It underwent
number of amendments by the Act 30 of 1927, Act of 1948, Act of 1950, Act 10 of
1912, Act 25 of 1926, and ultimately Act 3 of 1951 after the Constitution came
into force. Except the Act 25 of 1926 and Act 30 of 1927 in relation to Section
2 in relation to the applicability of the Act only to the persons professing the
Christian religion emphatically, the provisions of the Act have not undergone
substantial changes in so far as such implications are concerned. In that
situation either to call it a customary law or a personal law within the
sensitive syndrome politicalised would be totally beyond the legal conceptions.
The Act was never a foreign law as the very title 'The Indian Divorce Act'
connotes. It was intended to be intra- territorial a Lex Loci for a particular
religious subject. The myth in view of Section 7 of the Act that Indian Courts
apply Section 1(2)(d) of the English Matrimonial Causes Act is blasted by
Supreme Court in Renold Rajamani v. Union of India (37 supra). It was held
therein that 'Section 7 directs the Court to' act and give relief on principles
and rules conformable to 'principles and rules' on which the Court for Divorce
and Matrimonial Causes in England for the time being acts and gives relief. But
the expression 'principles and rules' does not mean the ground on which a suit
or proceeding may be instituted. The stage contemplated by Section 7 relates to
the norms by which the Court exercises the jurisdiction for the purpose of
disposing of the suit or the proceeding pending before it...". So when the
Constitution came into force the Act a pure and simple Indian Law in force and
continued thereafter became Law within the territory of India within the meaning
of Article 372 and Article 13 of the Constitution to stand the test of
Constitutionality. Therefore no amount of judicial interpretations in some
context of a litigation can alter the true and the real legal and constitutional
consequences.

   49. Undisputedly or as a legal consequence, the Act continued to exist till
and when the Constitution of India came to inforce on 1-1-1951. It cannot be
forgotten that Government of India Act 1915 was in force and adopted the Act as
the law to be in force in India at the relevant time till the Act of 1915 was
repealed by Government of India Act of 1935 whereby by virtue of Section 292 of
that Act the existing laws were continued and in effect the Indian Divorce Act
of 1869 was also continued to be in force till Indian Independence Act, 1947
came into force on 14/15-8-1947. Section 18 of the Indian Independence Act 1947
continued existing laws in the dominion of India which includes the Act in
question. Notwithstanding the repeal by Article 395 of the Indian Independence
Act, 1947 and Government of India Act 1935 under Article 395 of the Constitution
of India, by virtue of Article 372(1), all the existing laws as on that day were
continued to be in force. The Act of 1869 being one of such laws ought to be
taken as the 'existing law' within the meaning of Article 372( 1) of the
Constitution to call it a 'law' in force in the territory of India immediately
before the commencement of the Constitution to continue in force mandatorily
until altered or repealed or amended by a competent legislature or other
competent authority. When the Government of India Act 1935 introduced a federal,
in place of unitary constitution, Section 293 of the Act conferred on His
Majesty the power to adopt existing laws by Orders in Council. Similarly Article
372(2) and (3) gives the President power to make adaptations and modifications
of existing laws in order to bring them into accord with the provisions of the
Constitution and such adaptations under Article 372 has been made beyond
challenge in any Court as spelt out by the Supreme Court in M.P.V. Sundararamier
& Co. v. The State of Andhra Pradesh and Anr., Explanations I and II of Article
372(3) of the Constitution has clarified the meaning of 'law in force' and 'any
law' and to read:

     Explanation I: The expression 'law in force' in this article shall include
a law passed or made by a Legislature or other competent authority in the
territory of India before the commencement of this Constitution and not
previously repealed, notwithstanding that it or parts of it may not be then in
operation either at all or in particular areas.

     Explanation II: Any law passed or made by a Legislature or other competent
authority in the territory of India which immediately before the commencement of
this Constitution had extra-territorial effect as well as effect in the
territory of India, shall subject to any such adaptations and modifications as
aforesaid, continue to have such extra-territorial effect."

   50. A combined reading of the two explanations should bring the Act in
question to be 'the law in force' and 'any law' to continue inforce as existing
law and to be adopted after the Constitution came into force whether it was
intra-territorial or extra-territorial. These implications ought to remove all
the inhibitions imported into such a law in spite of Constitutional preservation
of such law and the operations for the benefit of the persons professing
Christian religion. The phantom of customary law or personal law attached to the
Act thus an unpalatable concept and an unconstitutional legal myth. Perhaps only
to remove it the makers of the Constitution added definitive and explanatory
intent in Article 13(2)(a) to include custom in the territory of India the force
of law within "Law" to make it void under sub-clause (1) if it is inconsistent
with Chapter in. The continuance of any law or anything having force of law when
the Constitution came into force was subject to its conforming to the
constitutionality and not otherwise. Thinking to the contrary would be
presumable absurdity that the constitution makers contemplated to save something
into constitution which be ultra vires of itself. That is how the Supreme Court
in Dasaratha Rama Rao v. State of A.P., AIR 1961SC

   546. (Appears to be same as foot note 12) and Vaijyanath v. Ramanath (supra)
had to strike down customs and laws which were found to be inconsistent with
Chapter III and the present Act cannot be made an exception. While referring to
Narsuappa Mali's case of Bombay (3 supra) and Srinivasa Iyer's case of Madras (6
supra) to think that personal law is not the law under Article 13(3)(a), one of
the constitutional experts of the country dissented justifiably in his strong
reasoned expressions:-

     " We have seen mat there is no difference between the expressions 'existing
law' and 'law in force'. This conclusion is strengthened by the consideration
that custom, usage and statutory law are so inextricably mixed up in personal
law that it will be difficult to ascertain the residue of personal law outside
that; it was, therefore, necessary to treat the whole of personal law as
existing law or law in force under Article 372 and to continue it subject to the
provisions of the Constitution and subject to the legislative power of the
appropriate legislature. In Narasu Appa's case (3 supra), both the Judges said
that Article 17 indicated that personal law was not included in the expression
'law' or 'law in force', for otherwise, mat Article would be wholly unnecessary,
since untouchability would have become void (presumably as violating equality).
It is submitted that the argument based on Article 17 is not correct. First, but
for Article 17 it could have been argued that untouchability was a part of
religion (Deuaru's case, AIR 1958 SCR 895) and the freedom to practise religion
guaranteed by Article 25 involved the enforcement of the disabilities attached
to untouchability. The throwing open of public temples to 'untouchables', which
is expressly provided for by Article 25 did not mean that as a part of religious
practice other disabilities could not be enforced. Secondly, the object of
Article 17 was not merely to abolish untouchability, but to implement such
abolition by imposing an obligation on Parliament to make the enforcement of
disabilities attaching to untouchability punishable by law. Thirdly, it is not
uncommon in a Constitution to make express provision for matters to which its
makers attach great importance, instead of leaving them to the dilatory and
hazardous process of litigation. Finally, entry 5. List III. Schedule 7 clearly
recognises personal law as 'law' which Parliament and State Legislatures can
make, enact or repeal. For all these reasons it is submitted that a personal law
of the community is "law" or "law in force" or "existing law" within the meaning
of the Constitution, pages 401 and 402 of Seervai on Constitutional Law -
(Vol.1)".

   As no precedent as on to-day dealt with such a question, the ratio decidendi
therein cannot be but to save the binding force due to per incuriam. Therefore
even assuming that the Act has the structure or the texture of a customary law
or personal law should be 'the law' within the meaning of Article 13(3)(a). When
the Supreme Court in Krishna Singh v. Mathum Ahir (4 supra) while dealing with a
question of a particular sect among Hindus were incapable of entering the
Sanyasi had to state that Part III of the Constitution does not touch upon the
personal laws of the parties and the Courts could not introduce its own concepts
of modern times but should have enforced the law as derived from recognised and
authoritative sources of Hindu Law i.e., Smruthis and Commentaries referred to,
as interpreted in the judgments of various High Courts except where such law is
altered by any usage or custom or is modified or aboraged by statute, (para 17
of the precedent). There was no occasion therein to deal with the implications
of other Articles of the Constitution as above to lay down the law in general
that Part III of the Constitution excludes personal law. There was also no
occasion therein to deal with the effect of Article 372 to have a bearing on
such personal law whether codified or not to be the law in force when the
Constitution came into force to continue till altered by legislation and
therefore it is difficult to think that the Bombay and Madras view has been
approved therein to lay down the law as such. Moreover in view of a larger Five
Judge Constitution Bench of the Supreme Court declaring the implication of
Article 372, in South India Corporation Pvt. Ltd. v. Secretary, Board of
Revetiue, that the expression subject to other provisions of

   the Constitution means that if there is conflict between the pre-existing law
and the provisions of the Constitution, latter will prevail, it must be
understood that the Supreme Court meant that notwithstanding any law in force
when the Constitution came into force including the customary law or personal
law conflicting with the Constitution as such, it is the Constitutional
safeguards including Chapter III which should prevail and not any such law in
any form offending such protection. The summary of the expressions of the
Supreme Court in paras 13 to 15 in this regard has been noted by the editors of
AIR rightly to read;-

     "The object of Article 372 is to maintain the continuity of the pre-
existing laws after the Constitution came into force till they were repealed,
altered or amended by a competent authority. Without the aid of such an Article
there would be better confusion in the field of law. The assumption underlying
the Article is that the State laws may or may not be within the legislative
competence of the appropriate authority under the Constitution. The Article
would become ineffective and purposeless if it was held that pre-Constitution
laws should be such as could be made by the appropriate authority under the
Constitution. The words "subject to the other provisions of the Constitution"
should, therefore, be given a reasonable interpretation, an interpretation which
would carry out the intention of the makers of the Constitution and also which
is in accord with the constitutional practice in such matters. The Article
posits the continuation of the pre-existing laws made by a competent authority
notwithstanding the repeal of Article 395; and the expression "other" in the
Article can only apply to provisions other than those dealing with legislative
competence. A pre-Constitution law made by a competent authority, though it has
lost its legislative competency under the Constitution, shall continue in force,
provided the law does not contravene the "other provisions" of the Constitution.
The words "subject to other provisions of the Constitution" mean that if there
is an irreconcilable conflict between the pre-existing law and a provision or
provisions of the Constitution, the latter shall prevail to the extent of that
inconsistency. An Article of the Constitution by its express terms may come into
conflict with a pre-Constitution law wholly or in part; the said Article or
Articles may also, by necessary implication, come into direct conflict with the
pre-existing law. It may also be that the combined operation of a series of
Articles may bring about a situation making the existence of the pre-existing
law incongruous in that situation. Whatever it may be, the inconsistency must be
spelled out from the other provisions of the Constitution and cannot be built up
on the supposed political philosophy underlying the Constitution."

   In that view of the matter the question whether the Act and the provisions
therein is 'the law' or 'the law in force' or anything 'having force of law'
within the meaning of Article 13(1) and Sub-clause 12(a) can no longer be res
integra and should be subject to the test of vires under the Constitution and in
particular Ch.III and Articles 13 and 14 read with Article 372.

   51. A serious doubt is likely to be raised in view of the two pronouncements
of the Supreme Court in Reynold Rajanumi v. Union of India (37 supra) and Anil
Kumar Mahishi v. Union of India (41 supra). In R. Rajamani's case (37 surpa),
the question involved was whether the parties having not registered their
marriage under the Special Marriage Act 1954 which they could, can now take
advantage of it by seeking the divorce on consent and it was held in the
negative in addition to clarifying the scope of Section 7 of the Act and Section
1(2)(d) of English Matrimonial Causes Act 1973. It had nothing to do with the
vires of Section 10 for any reason as in the present case in addition to the
question of the Act being the law to test the vires under Ch.III of the
Constitution within the implication of Article 372. Truly, Anil Kumar Mahishi's
case (41 supra) the question of Section 10 being violative of Article 14 on the
alleged ground of the provision being discriminary against the husband was
involved. In the first place, the husband being in a favourable position as
against the wife did not make the provision assailable. Secondly, with the
reasoning that the individuals not willing to submit to the Indian Divorce Act
or any other personal law are not obliged to marry exclusively under that law as
having freedom to marry under the Special Marriage Act 1954 and having married
under the Divorce Act and accepted the discipline, they were held to be not to
be heard to complain of its rigours. On that ground the husband's complaint of
Section 10 being ultra vires of Article 14 was not entertained. On the other
hand, it was categorically held therein that in so far as the grounds of divorce
are concerned under Section 10 of the Act, to that extent undoubtedly it is the
wife who is discriminated against. However, there was no occasion for the
Supreme Court to test the vires of the provision under Ch.III on such a ground
as in the present case. It must be taken that the Supreme Court has already
impliedly disapproved the vires of Section 10 of the Act in regard to Christian
wife with reference to Ch.III of the Constitution. In that view of the matter,
and in addition to Full Bench ruling of the Kerala High Court in A mini's case
(30 surpa) which is in tune with all the legal implications as laid down by the
Supreme Court as above, this Court is totally justified in striking down that
portion of the law in the provision which is inconsistent with Chill of the
Constitution.

   52. In all public interest litigations like the present one, both
complimentary and condemnatory consequences have become inevitable. The
executive pusillanimity to avoid legitimate legislation process in spite of
suggestions by Courts as in the present case and public demand by the aggrieved,
compels the judiciary to act constitutionally to render justice in the process
to make 'the law' by declaration of law through interpretation undeterred by the
reactions complimentary or condemnatory of judicial activism implying the normal
prepassivism. This is one such instance for our intervention to remove
discrimination based on sex among persons professing Christian religion by
striking down that portion of Section 10 of the Act to the extent inconsistent
with Ch.III of the Constitution. It is worth complimented or commented of
activism to render justice than to allow the subjects to suffer the passivism of
other agencies under the Constitution and that is what we have done.

   53. In the result, the writ petitions are allowed to the extent indicated.
There is no order as to costs.