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IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 20076 of 2009(R)
1. SAUMYA ANN THOMAS, AC-18, ARTIEE COMFORT
... Petitioner
Vs
1. THE UNION OOF INDIA, REPRESENTED BY
... Respondent
2. PRAVEEN THOMAS, THAZHETHIL ST. MARYS
For Petitioner :SRI.P.B.SAHASRANAMAN
For Respondent :SRI.PRATHEESH.P
The Hon'ble MR. Justice R.BASANT
The Hon'ble MRS. Justice M.C.HARI RANI
Dated :25/02/2010
O R D E R
R. BASANT &
M.C. HARI RANI, JJ.
-------------------------------------------------
W.P.(C) No. 20076 of 2009-R
-------------------------------------------------
Dated this the 25th day of February, 2010
JUDGMENT
Basant,J.
Is the stipulation of a period of two years as the minimum
mandatory period of separate residence in Sec.10A(1) of the
Divorce Act right, just and fair? Is it arbitrary, fanciful and
oppressive? Does that stipulation offend Art.14 and/or Art.21
of the Constitution? Does that stipulation deserve to be read
down to "one year" to save the provision from the vice of
unconstitutionality? These interesting contentions are raised
for our consideration in this writ petition.
2. These questions arose for consideration before us in
this writ petition as also in W.P.(C) No.24219/08. Both were
heard together. We have had the advantage of hearing Sri.
G.Shrikumar, the learned counsel who was requested to render
W.P.(C) No. 20076 of 2009 -: 2 :-
assistance as amicus curiae to this Court. We have also heard
the arguments of Advocates M/s T.S. Harikumar, Liji J.
Vadakkedom, H.B. Shenoy and T.P.M. Ibrahim Khan, the learned
Assistant Solicitor General of India. W.P.(c) No.24219/08 is
being disposed of by a separate judgment in view of certain vital
difference in the facts scenario in that case. In fact we note that
the bulk of arguments were advanced in W.P.(c) No.24219/08.
We must straightaway record our appreciation for the able and
effective assistance rendered to us by Sri.G. Shrikumar who
appeared as amicus curiae as also Advocate Sri. Ligi J.
Vadakkedom who appeared for one of the parties.
3. To the vital and crucial facts first. The petitioner and
the 2nd respondent are spouses. They are Christians by faith.
Their marriage was solemnized on 6/4/08 in accordance with
Christian religious rites. Differences and disagreements arose
instantly after marriage and the spouses started separate
residence with effect from 21/9/08. The petitioner herein filed
an application for divorce on 5/12/08. That petition was
numbered as O.P.No.1313/08. During the pendency of that
petition, the parties appear to have settled all their outstanding
disputes. They entered into Ext.P1 agreement. They
consequently filed I.A.No.536/09 with a prayer that the marital
tie may be dissolved by a decree for divorce on mutual consent
W.P.(C) No. 20076 of 2009 -: 3 :-
under Sec.10A of the Divorce Act. They filed I.A.No.537/09 to
dispense with the waiting period of six months under Sec10A(2)
of the Divorce Act. By the impugned order, the court below
rejected both the applications holding that the period of two
years having not elapsed admittedly from the date of
commencement of separate residence, this joint petition under
Sec.10A of the Divorce Act is not maintainable.
4. The learned counsel for the petitioner as also the
learned counsel for the 2nd respondent have been heard. The
learned counsel for the spouses assail the impugned order on the
following grounds:
1. The period of two years stipulated under Sec.10A(1)
and the period of six months stipulated under
Sec.10A(2) of the Divorce Act must have been waived
and dispensed with by the learned Judge of the Family
Court.
2. The stipulation of a period of two years under
Sec.10A(1) is arbitrary, capricious and fanciful; is
not fair, just, right and reasonable and
consequently offends the right to equality of the
petitioner under Art.14 of the Constitution and her
right to life under Art.21 of the Constitution.
The same is liable to be read down as one year
and consequently divorce under Sec.10A of the
Divorce Act is liable to be granted.
W.P.(C) No. 20076 of 2009 -: 4 :-
5. To appreciate this contention raised, we deem it
necessary to extract Sec.10A of the Divorce Act. It reads thus:
"10A. Dissolution of marriage by
mutual consent.-- (1) Subject to the
provisions of this Act and the rules made
thereunder, a petition for dissolution of
marriage may be presented to the District
Court by both the parties to a marriage
together, whether such marriage was
solemnised before or after the
commencement of the Indian Divorce
(Amendment) Act, 2001, on the ground
that they have been living separately for a
period of two years or more, that they
have not been able to live together and
they have mutually agreed that the
marriage should be dissolved.
(2) On the motion of both the parties
made not earlier than six months after the
date of presentation of the petition
referred to in sub-section (1) and not later
than eighteen months after the said date, if
the petition is not withdrawn by both the
parties in the meantime, the Court shall,
on being satisfied, after hearing the
parties and making such inquiry, as it
thinks fit, that a marriage has been
solemnised and that the averments in the
petition are true, pass a decree declaring
W.P.(C) No. 20076 of 2009 -: 5 :-
the marriage to be dissolved with effect
from the date of decree."
(emphasis supplied)
The provision is in substance a verbatim reproduction of the
provision in Sec.13B of the Hindu Marriage Act, Sec.32B of the
Parsi Marriage and Divorce Act and Sec.28 of the Special
Marriage Act. The only difference is that instead of the period
of two years mentioned in Sec.10A(1) emphasised above, one
year is the period of separate residence stipulated in those
provisions.
6. The first contention is that the period of two years under
Sec.10A(1) and the period of six months under Sec.10A(2) of the
Divorce Act must have been waived by the Family Court in its
discretion. We find absolutely no merit in this contention at all.
Under the body of Sec.10A(1), four conditions must co-exist
before an application can be made. They are:
A. The marriage between the spouses must have been
solemnized;
B. They have mutually agreed that the marriage should be
dissolved by mutual consent;
C. That they have not been able to live together; and
W.P.(C) No. 20076 of 2009 -: 6 :-
D. That they have been living separately for a period of
two years or more.
7. We are satisfied that these are the essential
requirements/ingredients/preconditions which must be
established to justify an application for dissolution of marriage
by mutual consent under Sec.10A(1). These conditions must co-
exist to justify an application for divorce. There is no provision
- express or implied, which can enable the court to waive/reduce
the mandatory minimum period of separate residence stipulated
under Sec.10A. That contention cannot hence be accepted at
all.
8. There was a contention raised at the Bar initially that it
is enough that conditions A and B specified above along with
condition C and/or D alone need be satisfied. After detailed
discussions at the Bar, that contention is not pressed. We are
not hence delving deeper into that contention. Suffice it to say
that such a contention is not justified by the language of
Sec.10A. All the above four pre conditions - A, B, C and D must
co-exist to justify institution of proceedings for dissolution of
marriage by mutual consent under Sec.10A(1) of the Divorce Act.
9. We may also mention that we find no merit in the
contention that the period of six months stipulated under
Sec.10A(2) can and must have been waived by the Family Court.
W.P.(C) No. 20076 of 2009 -: 7 :-
We have already dealt with this question in detail in M. Krishna
Preetha v. Dr. Jayan Moorkkanatt & another in Mat. Appeal
No.633/08 dated 22/2/2010. Following the decision of the
Supreme Court in Anil Kumar Jain v. Maya Jain (2009 (12)
SCALE 115), we have held that no court other than the Supreme
Court invoking its power under Art.142 of the Constitution can
dispense with the mandatory period of six months specified
under Sec.10A(2) of the Divorce Act. In these circumstances,
we find no merit in the challenge raised on ground No.1 above.
10. We now come to the second ground raised above.
Marriage in the Christian and Indian traditional thought has
been accepted as an indissoluble sacrament. Divorce and re-
marriage which are common concepts today were unknown to
these systems of law. With passage of time marriage as a purely
indissoluble sacrament has undergone changes conceptually.
Marriage today is not looked upon in law as merely a divine
institution made in heaven with the incident of indissolubility.
Marriage and its dissolution, in modern judicial and legal
thought, is reckoned as the incident of the human right of right
to life. Marriage today is a social institution of partnership,
friendship, mutual complementarity, love, affection, caring and
sharing between two equal partners. Partners walk into the
institution of marriage purely based on their consent and
W.P.(C) No. 20076 of 2009 -: 8 :-
volition though after they enter such institution voluntarily, they
are bound by the legal norms, ideas and procedure.
11. From a totally indissoluble institution, winds of
change have swept the institution of marriage. Initially divorces
on the ground of marital contumaciousness and non-existence of
vitals necessary to make a marriage work were recognised by
law. But later it was recognised that matrimony is after all a
human institution - a bond created by exercise of the free act of
will by the partners who are responsible; but fallible individuals
who may err and blunder. With this emerged the concept of
divorce by mutual consent. When the partners find it impossible
to live out their lives with happiness and meaningfully, they were
granted the option in law to walk out of such marriage subject to
conditions by mutual consent. Today, most modern systems of
jurisprudence recognise and accept the right of the spouses to
get their marriage dissolved by mutual consent. This
transformation in the concept of marriage and its dissolution and
acceptance of those altered concepts by the legal systems did
not take place one fine morning. Many a battle had to be fought
socially and legally before the concept of divorce by mutual
consent was accepted by the polity and approved by the
legislature. The Indian experiment shows that the Special
Marriage Act, 1954 in Sec.28 recognised the concept of
W.P.(C) No. 20076 of 2009 -: 9 :-
dissolution of a secular marriage by mutual consent. Long later,
in 1976 the concept of divorce by mutual consent was accepted
and recognised under the Hindu Marriage Act. Still later in
1988 the Parsi Marriage and Divorce Act in Sec.32B accepted
and recognised the concept of divorce by mutual consent. To
get the concept introduced into the Divorce Act, 1869 we had to
wait for a lot more of time. In 2001, after the Courts and the
Law Commission incessantly demanded the incorporation of such
a provision, Sec.10A of the Divorce Act found its way into the
Act. It is thus that the concept of divorce by mutual consent was
accepted under the Divorce Act.
12. But when the said provision was incorporated in the
Divorce Act, surprisingly instead of a period of one year as the
mandatory minimum separate residence, a period of two years
was stipulated under Sec.10A(1) of the Divorce Act. It is that
stipulation which is challenged before us.
13. It is contended that the incorporation and insistence of
a longer period of mandatory minimum separate residence so far
as the persons to whom the Indian Divorce Act applies is
discriminatory. What is the justification for such a longer period
mandatory minimum separate residence for those to whom the
Indian Divorce Act applies; it is queried. It is argued that there
is absolutely no principle or reason that justifies insistence on
W.P.(C) No. 20076 of 2009 -: 10 :-
such longer period of separate residence so far as the Christians
alone are concerned, to whom the Divorce Act applies. The
constitutional mandate of equality is offended, it is urged. The
core constitutional value of equality and equal protection of the
law Art.14 of the Constitution is offended, contend the counsel.
If the mandatory minimum period of separate residence of one
year is sufficient for those to whom the secular law of divorce by
mutual consent under Sec.28 of the Special Marriage Act, and
Hindus to whom Sec.13B of the Hindu Marriage Act and Parsis
to whom Sec.32B of the Parsi Marriage and Divorce Act, there is
no justification constitutionally acceptable for insisting on a
different longer period of mandatory minimum separate
residence so far as the Christians to whom Sec.10A of the
Divorce Act applies, contend counsel. The learned counsel urge
that the stipulation is unconstitutional as it offends the mandate
of equality under Art.14 of the Constitution.
14. It is secondly contended that such stipulation of the
longer period of minimum mandatory separate residence offends
the right to life guaranteed under the Constitution. It is trite
that the right to marry and right to obtain divorce by mutual
consent must be reckoned as incidents of the right to life. Right
to life can be curtailed or regulated only by procedure
established by law. Such procedure, to pass the test of
W.P.(C) No. 20076 of 2009 -: 11 :-
constitutionality must be fair, just, reasonable and right and
should not be arbitrary, fanciful or oppressive. The stipulation of
the longer period of two years is arbitrary, fanciful and
oppressive. It is unreasonable. It offends the core constitutional
value of respect to the dignity of life. Spouses during their
active period of fertility and re-productivity will be unnecessarily
and unreasonably obliged to conform to the oppressive
stipulation of living in a dead marriage for one more year. This
offends their right to life and the right to pursue happiness, it is
urged. It is contended that the stipulation of the longer period of
two years under Sec.10A(2) to justify a claim for divorce by
mutual consent for the Christians alone offends not only the
right to equality under Art.14 of the Constitution; but it also
offends the right to life under Art.21 of the Constitution. It
places unreasonable, arbitrary and baseless fetter of the spouses
to enjoy life and pursue happiness, contend counsel.
15. The learned counsel, in these circumstances, contends
that the stipulation of the period of two years in Sec.10A(2) of
the Divorce Act must be held to offend the fundamental rights
guaranteed under Part III of the Constitution and consequently
that stipulation must be held to be unconstitutional. Sec.10A as
it now stands must be declared to be unconstitutional under
Art.13 of the Constitution. The consequent prayer is that to
W.P.(C) No. 20076 of 2009 -: 12 :-
avoid unconstitutionality the period of two years stipulated in
Sec.10A(2) may be read down to a period of one year, in tandem
with the periods stipulated in Sec.28(1) of the Special Marriage
Act, Sec.13B(1) of the Hindu Marriage Act and Sec.32B(1) of the
Parsi Marriage and Divorce Act.
16. This argument advanced by Sri.G. Shrikumar, amicus
curiae, mainly is endorsed by the other counsel who appeared
for the parties.
17. Sri.T.P.M. Ibrahim Khan, the learned Assistant
Solicitor General of India, on the contrary, contends that the
provision is absolutely valid, correct and constitutional. It is not
vitiated by the vices against which Arts.14 and 21 of the
Constitution are safeguards. The learned ASGI resists the
contention on the following specific grounds:
18. First of all, the learned ASGI points out that the
personal laws are not 'laws' or 'law in force' within the sweep of
Art.13 of the Constitution. The learned ASGI places reliance on
the decision of the Division Bench of the Bombay High Court in
The State of Bombay v. Narasu Appa (AIR (39) 1952 Bombay
84). The counsel contends that this view has been accepted by
the Supreme Court in Srikrishna Singh v. Mathura Aahir &
Others ((1981) 3 SCC 639). In these circumstances, a piece of
personal law cannot be assailed on the ground that it offends the
W.P.(C) No. 20076 of 2009 -: 13 :-
fundamental rights guaranteed under Part-III of the Constitution.
Art.13 has no application whatsoever in such a situation,
contends the learned ASGI.
19. Sri.G. Shrikumar, the amicus curiae, questions the
correctness of the dictum in Narasu Appa (supra). The learned
counsel contends that the view taken by the Bombay High Court
in that decision has not been approved by jurists. The learned
counsel points out that Sri.H.M. Seervai in his work
"Constitutional Law of India" has opined as follows:
"There is no difference between the
expression "existing law" and "law in force"
and consequently personal law would be
"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 would be difficult to
ascertain the residue of personal law
outside them; it was, therefore, necessary
to treat the whole of personal law as 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
legislature."
It is further pointed out that the learned author has finally
opined as follows:
W.P.(C) No. 20076 of 2009 -: 14 :-
"Finally Entry 5 List 3 Schedule VIII
of the Constitution clearly recognizes
personal law as a law which parliament and
state legislature can enact, alter or repeal.
For these reasons it is submitted that the
personal law of a community is law and is
"law in force" or "existing law" within the
meaning of the constitution."
20. The learned counsel further points out that many
other authors, including Chitaley on the Commentaries on the
Constitution of India have made critical reference to this aspect
of the decision excluding personal laws from the sweep of Art.13
of the Constitution.
21. Sri. G. Shrikumar further points out that Justice V.R.
Krishna Iyer as early as in Assan Rawther v. Ammu Umma
(1971 KLT 684) has disagreed with the proposition enunciated in
Narasu Appa (supra) by observing as follows in para-23:
"In the Bombay case, the learned
Judges went to the extent of laying down
that personal law is not included in the
expression "laws in force" used in Article
13(1). With great respect, I demur to the
proposition and to the reasoning adopted in
reaching this result. Personal law so-called
is law by virtue of the sanction of the
sovereign behind it and is, for that very
W.P.(C) No. 20076 of 2009 -: 15 :-
reason, enforceable through court. Not
Manu nor Muhammed but the monarch for
the time makes 'personal law' enforceable.
Article 13(1) gives an inclusive and not
exhaustive definition. And I respectfully
venture the opinion that Hindu and
Mohamedan laws are applied in courts
because of old regulations and Acts
charging the courts with the duty to
administer the personal laws and not
because the ancient law-givers obligate the
courts to enforce the texts."
(emphasis supplied)
Sri. G. Shrikumar further points out that the Supreme Court in
Sarla Mudgal v. Union of India (AIR 1995 SC 1531) has also
taken the view that the personal law owes its existence as law
not to any religion; but to legislation and the willingness of the
courts and the sovereign to enforce such personal law. The
counsel relies on the following passage in para-35 of Sarla
Mudgal (supra):
"It would be necessary to emphasise
that the respective personal laws were
permitted by the British to govern the
matters relating to inheritance, marriages
etc., only under the Regulations of 1781
framed by Warren Hastings. The
Legislation - not religion - being the
W.P.(C) No. 20076 of 2009 -: 16 :-
authority under which personal law was
permitted to operate and is continuing to
operate, the same can be superseded/
supplemented by introducing a uniform
civil code."
(emphasis supplied)
22. It is also brought to our notice that a learned single
Judge of Bombay High Court in Re Smt. Amina (AIR 1992
Bombay 214) has doubted the proposition enunciated in Narasu
Appa (supra) and had referred the matter to a larger Bench.
Our attempts to ascertain the result of the said reference has not
been successful. We note that the Delhi High Court had also
made an effort to trace the answer on reference by the larger
Bench; but as stated in Kalawati v. Union of India
(L.A.A.No.650/08 and CM No.9226/08 dated 27/1/09), that court
was also not able to trace the outcome of the reference. We are
now given to understand that the Division Bench had declined to
answer the reference by judgment dated 6/11/1993.
23. The learned ASGI submits that a Division Bench of this
Court in Mathew & Another v. Union of India (1999 (2) KLJ
824) has also accepted the dictum in Narasu Appa (supra) and,
in these circumstances, no doubts can be entertained now about
the acceptability of that dictum. The learned ASGI further
points out that in Shri Krishna Singh v. Mathura Ahir ((1981
W.P.(C) No. 20076 of 2009 -: 17 :-
3 SCC 689) in para17 the Supreme Court has virtually endorsed
the dictum in Narasu Appa (supra) in the following words:
"In our opinion, the learned Judge failed to
appreciate that Part III of the Constitution
does not touch upon the personal laws of
the parties. In applying the personal laws
of the parties, he could not introduce his
own concepts of modern times but should
have enforced the law as derived from
recognised and 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 of custom or is modified or
abrogated by statute."
(emphasis supplied)
We have serious doubts about the proposition that a piece of
personal law - whether statutory or precedent recognised or
otherwise, will not be law or law in force within the meaning of
Art.13 of the Constitution. This would go against the
fundamental and core constitutional values as also the scheme of
Art.13 of the Constitution.
24. All laws whether pre constitutional or post
W.P.(C) No. 20076 of 2009 -: 18 :-
constitutional will have to pass the test of constitutionality. We
find no reason, in a secular republic, to cull out "personal law"
alone and exempt the same from the sweep of Art.13 and Part III
of the Constitution. With great respect to the eminent Judges
who decided Narasu Appa (supra), we feel that the decision
requires reconsideration. A piece of personal law also binds
citizens. It is as much a piece of enforceable law
notwithstanding the fact that such principles of personal law may
not be statutory law and may only have been accepted and
enforced by the sovereign and acted upon by the courts for a
long period of time. Art.13 assures the citizen that pre-
constitutional or post-constitutional laws shall not be permitted
to eat into space of fundamental rights reserved by 'we the
people of India' in favour of themselves while giving unto
themselves the constitution. In that view of the matter, we are
certainly of the opinion that the decision in Narasu Appa
(supra) which appears to have been endorsed in Mathew
(supra) deserves re-consideration. Mathew (supra) does not
appear to have delved deeper into question before endorsing
Narasu Appa (supra). We are tempted to agree with the
learned single Judge who opined in Re Smt. Amina (AIR 1992
Bombay 214) that the observations of the Supreme Court in
Shri Krishna Singh (supra) extracted above cannot be
W.P.(C) No. 20076 of 2009 -: 19 :-
reckoned as ratio. In an appropriate case, we shall certainly
want the matter to be decided by a larger Bench.
25. Be that as it may, we are of the opinion that this
question need not be referred to a larger Bench in this case. We
are not dealing with a piece of traditional personal law pure and
simple. We are dealing with a piece of statutory law enacted by
the Parliament. Sec.10A has been introduced into the Divorce
Act by the legislative act of Parliament. Notwithstanding the
fact that such statutory law amends the personal law, it will
certainly have to satisfy Part III of the Constitution and will
hence be open to challenge under Art.13. On this question, we
find absolutely no doubt. If there be any doubt, the decision of
the Full Bench of this Court in Mary Sonia Zachariah v. Union
of India (1995 (1) KLT 644 (FB)) lays to rest all such doubts.
After adverting to Narasu Appa (supra), the Full Bench has
observed thus in para-39:
"39. Another contention of the
learned Central Government Pleader was
that the impugned provisions in S.10 are
codified forms of personal laws of
Christians in India founded on the
teachings of Christ and his disciples. Such
personal laws may not come within the
purview of Art.13 of the Constitution of
India and as such cannot be declared as
W.P.(C) No. 20076 of 2009 -: 20 :-
ultra vires the Constitution. Learned
counsel has in this connection relied upon
the decision in The State of Bombay v.
Narasu Appa Mali (AIR 1952 Bom. 84)
where it has been held that personal laws
are not covered by Art.13 of the
Constitution of India. We do not find any
merit in the above contention as we are in
this case directly concerned with a
particular provision in an enactment
passed by the legislature unlike in the case
which came up for consideration in
Narasu Appa Mali's case. So long as
the infringed provisions are part of an Act,
it must pass the test of constitutionality
even if the provision is based upon
religious principles. We would accordingly
repel the said contention also."
(emphasis supplied)
26. We do further note that the Supreme Court in Shri
Krishna Singh (supra) which decision, according to the learned
ASGI, endorses and approves the dictum in Narasu Appa
(supra) has also observed that when personal law is altered,
"modified or abrogated by statute", the same will have to satisfy
the test of Art.13. (See para-17 of Shri Krishna Singh already
extracted above).
27. We do, in these circumstances, hold that even if the
W.P.(C) No. 20076 of 2009 -: 21 :-
dictum in Narasu Appa (supra) is valid and binding and has
been approved by a co-equal Bench of this Court as well as the
Supreme Court, the same cannot in any way justify the
contention that Sec.10A of the Divorce Act is not amenable to
challenge under Art.13 of the Constitution. The said contention
must, in these circumstances, fail. We hold that Sec.10A of the
Divorce Act shall have to stand the test of Art.13 of the
Constitution.
28. The learned ASGI next contends that classification is
inherent in legislation and the mere fact that there has been
classification of Christians as a separate group in the matter of
divorce by mutual consent to stipulate a different period of
minimum mandatory separate residence cannot be said to offend
Art.14. Relying on precedents which we find unnecessary to
specifically refer, the learned ASGI contends that the classical
test as judicially enunciated demands that two conditions must
be fulfilled. They are:
(1) The classification must be founded on an intelligible
differential which distinguishes those that are grouped
together from others.
(2) The differential must have a rational relation to the
object sought to be achieved by the law under challenge.
W.P.(C) No. 20076 of 2009 -: 22 :-
There can be no dispute on this proposition of law.
Classification is permissible and differential in classification can
be justified only if the above two tests are simultaneously
satisfied by the piece of law under challenge. It is also well
settled that classification on the basis of religion in the matter of
personal laws is justified. These general principles are not
disputed. But the learned counsel argue that these tests are not
satisfied in the instant case.
29. They argue that concept of divorce by mutual consent
is unknown to the Christian personal law. It is not modification
or amendment of an existing stipulation regarding divorce
applicable to Christians. Sec.10A attempts to introduce the
secular concept of divorce by mutual consent into the personal
law. Christian, Hindu or Parsi religions had not permitted
divorce by mutual consent under their traditional personal law.
The concept is alien to all these religions identically. The
secular concept of divorce by mutual consent had gained
currency and acceptance in the system. There was demand from
members of these communities that such concept must be made
applicable to them and they should not be denied the benefit of
such divorce by mutual consent merely because they had chosen
to get their marriages solemnised by following the traditional
rites available in their community. It is this demand - by people
W.P.(C) No. 20076 of 2009 -: 23 :-
of all religions that the secular concept of divorce by mutual
consent must be made applicable to them also that prompted the
legislature to bring in amendments to the personal laws by Acts
of Parliament. The classification is not on the basis of religion.
The classification is on the basis that the beneficiaries are
spouses who want the benefit of divorce by mutual consent,
notwithstanding the fact that they belong to a religion which
does not recognize divorce by mutual consent and have got their
marriages solemnised by observing religious rituals and rites.
Those who belong to such a group cannot be discriminated on
the basis of their religion. The community may initially have
been unwilling to accept such an altered progressive concept
regarding divorce. The provision may have been introduced into
the Divorce Act belatedly on account of such assumption of
parliament about reluctance of the community to accept change.
But having chosen to introduce the provisions relating to divorce
by mutual consent into the Christian law of divorce and having
decided to make the said benefit available to them, the
legislature is not justified in discriminating against Christians
who belong to that larger group of spouses wanting the benefit
of the secular concept of divorce by mutual consent solely on the
basis of their religion.
30. The argument in short is this. We belong to a larger
W.P.(C) No. 20076 of 2009 -: 24 :-
group of Indians who do not want religion to interfere with our
right to claim divorce by mutual consent. It is for the benefit
such larger group of Indians that the legislature has chosen to
introduce the concept of divorce by mutual consent. To those
who had married under the secular Special Marriage Act the
benefit was made available in 1954 when Sec.28 of the Special
Marriage Act was enacted. In 1956 it was made applicable to
the Hindus in the group. In 1988 it was made applicable to
Parsis in the group. In 2001 it was made applicable to
Christians in that group. For Muslim this is not necessary as
they can get their marriage dissolved by mutual consent already
under their personal laws without the intervention of the court.
Now the concept of divorce by mutual consent is applicable to all
Indians. Having made it applicable to all Indians belonging to
that group, it is not constitutionally right, just or fair to
discriminate among the Christian members of the
group/classification on the ground of their religion and to insist
on a longer period of mandatory minimum separate residence so
far as they are concerned.
31. We have first of all got to see what is the basis of the
classification? The dominant rationale for classification, we
must note is the anxiety and the yearning of the legislature, in
response to popular demands, that the secular concept of divorce
W.P.(C) No. 20076 of 2009 -: 25 :-
by mutual consent must be made available and applicable to the
followers of all religions who want to take advantage of the
same. They are people who may have got their marriages
solemnized in accordance with their respective personal laws;
but want such marriages to be dissolved on the ground of mutual
consent. That is the dominant principle of classification. To
such class of persons benefits have been extended by
amendment and incorporation of identical provisions in the
statutory law relating to marriage. The beneficiaries do not
primarily and dominantly belong to the class of Christians,
Hindus or Parsis. They are not classified for the purpose of the
amendment on the basis of their religion at all. They belong to
the class of persons who notwithstanding the solemnization of
their marriage under the personal law and notwithstanding the
absence of such provisions in their personal law, want to claim
the benefit of such dissolution of marriage by mutual consent as
is available to those who have got their marriage solemnized
under the secular law i.e., the Special Marriage Act. After
having identified such a class of persons and after having chosen
to extend the benefit of divorce by mutual consent which is
totally alien to their personal law to them, though at different
points of time there is, according to us, absolutely no justification
in again classifying them on the basis of their religiou and
W.P.(C) No. 20076 of 2009 -: 26 :-
applying the law unequally to such a homogeneous group of
persons on the basis of their religious identity. Religious identity
is irrelevant to such a group of persons who want to transcend
their religious identity and claim the benefit of the secular
concept of divorce by mutual consent. The sub-classification in
such a broad group on the basis of their religion and
differentiation against them must obviously be held to be
unconstitutional as the discrimination and differentiation is
unrelated to the purpose and object of classification.
32. We do first of all look at Art.44 of the Constitution
which enjoins that the State must endeavour to secure for all its
citizens a uniform civil code through out the territory of India.
The preamble of the Constitution declares and stipulates that the
Union of India shall be a sovereign, secular, socialist, democratic
republic. The core values of the constitution are declared.
Secularism without any dispute is one of the basic features of the
Indian Constitution. The State cannot be secular until the polity
also becomes secular. Constitutional secularism is not denying
religion as such. The core of Constitutional secularism is the
realistic understanding and acceptance that the religions shall
not transgress into domains and areas where religion is and
ought to be irrelevant.
33. Art.44 of the Constitution mandates that there must be
W.P.(C) No. 20076 of 2009 -: 27 :-
a uniform civil code in India. All Indians ideally will have to
come under the umbrella of a uniform civil code which will
contribute to the creation of national identity and character.
Persons who have imbibed the core constitutional value of
secularism and the constitutional dream of the polity having a
uniform Indian civil laws are members of the classified group to
whom this law is expected to cater. Sec.28 of the Special
Marriage Act, Sec.13B of the Hindu Marriage Act, Sec.32B of the
Parsi Marriage and Sec.10A of the Divorce Act are all attempts
of the legislature to make the law of divorce by mutual consent
applicable to this broad classification/group of individuals. The
law classifies them into one group and makes the benefit of the
concept of divorce by mutual consent, unknown to their
respective traditional personal law, available to them. Due to
pressure of obscurantist religious groups this could not evidently
be introduced simultaneously by Parliament by enacting a law
applicable to all in the group. Progressively one by one the
benefit has been extended to the followers of all religions. When
the legislature has perceived that the time is ripe to extend the
benefit of the concept to a particular community, to further
discriminate them on the basis of their religion is certainly
anathema to law. It offends the principle of equality. The
stipulation of the longer period of mandatory separate residence,
W.P.(C) No. 20076 of 2009 -: 28 :-
the differential, has no rational relationship to the object sought
to be achieved. In short, we agree that classifying persons into
one group to extend the benefit of the secular concept of divorce
by mutual consent to them by progressive amendment of the
personal law though in stages and later discriminating among
them on the basis of religion by prescription of a longer period of
mandatory minimum separate residence clearly offends the
mandate of equality under Art.14 of the Constitution. We take
the view that such prescription offends Art.14 and must hence be
held to be unconstitutional.
34. The learned counsel alternatively argue that the
discriminating stipulation offends the right to life guaranteed
under Art.21 of the Constitution. The stipulation obliges those
to whom Sec.10A will be applicable to continue in dead
matrimony for a period of one year more. This obligation is not
there for persons belonging to other religions. Willing couple
who want to avail the benefit of the concept of divorce by mutual
consent will have to waste one extra year during the prime
period of life only to satisfy the unreasonable statutory
stipulation of a longer period. This would offend their right to
life and their right to pursue happiness. The imposition of such
an onerous condition on one section of the populace alone is
arbitrary, fanciful and oppressive. It is not fair, just and right,
W.P.(C) No. 20076 of 2009 -: 29 :-
contend the learned counsel.
35. It is now well settled that right to marry and the right
to secure divorce must be reckoned as basic and essential
incidents of the right to life. Right to life cannot be controlled,
regulated or denied except by procedure established by law.
This procedure cannot be arbitrary, fanciful or oppressive and
must necessarily answer the test of fairness, propriety and
reasonableness. Para-56 of the decision in Maneka Gandhi v.
Union of India (AIR 1978 SC 597) appears to be relevant and
crucial. It reads as follows:
"56. In fact equality and arbitrariness
are sworn enemies; one belongs to the rule
of law in a republic, while the other, to the
whim and caprice of an absolute monarch.
Where an act is arbitrary, it is implicit in it
that it is unequal both according to
political logic and constitutional law and is
therefore violative of Article 14". Article
14 strikes at arbitrariness in State action
and ensures fairness and equality of
treatment. The principle of
reasonableness, which legally as well as
philosophically, is an essential element of
equality or non-arbitrariness pervades
Article 14 like a brooding omnipresence
and the procedure contemplated by Article
21 must answer the test of reasonableness
W.P.(C) No. 20076 of 2009 -: 30 :-
in order to be in conformity with Article
14. It must be "right and just and fair" and
not arbitrary, fanciful or oppressive;
otherwise, it would be no procedure at all
and the requirement of Article 21 would
not be satisfied".
(emphasis supplied)
36. In this context it will be apposite to look at the
rationale behind the stipulation of a period of mandatory
minimum separate residence. The law and the system values
and cherishes the institution of matrimony. The concept of
marriage being sublime is accepted by the refined polity.
Though the polity and State does not look at marriage as purely
a divine sacrament it accepts marriage to be the most
fundamental and sublime of all human institutions. Marriage is
an arrangement/institution between the adult partners which has
social and societal implications. Even when the concept of
divorce by mutual consent is accepted, the system wants to
ensure that a decision to dissolve marriage by mutual consent
is taken by the partners only after sufficient forethought. The
spouses must decide mutually that the marriage can be dissolved
by their mutual consent. They must be satisfied that they are
not able to live together. They must actually have been unable
to live together and such period of separate residence must be a
W.P.(C) No. 20076 of 2009 -: 31 :-
prescribed mandatory minimum. All this is made only to ensure
that a decision to dissolve marriage is not taken hastily and
without sufficient forethought or contemplation. This anxiety of
law is reflected in Sec.28(2) of the Special Marriage Act, Sec.13B
(2) of the Hindu Marriage Act and Sec.10A(2) of the Divorce Act.
Even after the parties take a decision to dissolve marriage by
mutual consent and file an application, they have to live with the
decision, contemplate the same, sleep over the decision and wait
for a period of six months before a court can pass any order on
the basis of such a joint application. Only if the request is
repeated after the said period of six months, can the court grant
a decree for divorce by mutual consent.
37. We intend to note that the prescription of the period of
mandatory minimum separate residence has an objective to
serve, that is to ensure the interests of sufficient forethought and
contemplation before an application is filed. Even thereafter, the
contemplation must continue. The stipulation of the period of
minimum mandatory separate residence thus serves this
purpose. Considering the purpose and the group of people to
which such purpose is to apply and operate, we find the
stipulation of different periods for different religions totally
unjustified. That renders the stipulation not fair, just and right.
It renders the stipulation unreasonable, arbitrary, fanciful and
W.P.(C) No. 20076 of 2009 -: 32 :-
oppressive. In that view of the matter, we are satisfied that
Art.21 of the Constitution is also offended by the prescription of
a separate, different and longer period of mandatory minimum
separate residence for those to whom the Divorce Act applies.
Having brought all persons belonging to all religions within a
group/classification for the purpose of extending the benefit of
the concept of divorce by mutual consent and having chosen to
make that benefit available to members of all the communities
within the group, later stipulation of a different more onerous
period to one sub group alone on the basis of the unreasonable
and irrelevant basis of religion does certainly, according to us,
offend the mandate of right to life under Art.21 of the
Constitution. That the discrimination manifests itself not in one
common statute but in a separate statute applicable to the
victims of discrimination is not relevant while considering the
challenge against the unconstitutional discrimination.
38. It is argued by the learned ASGI with the help of the
discussions in Parliament that the community had demanded the
stipulation of different period considering the difference in the
Christian approach to indissolubility of marriage. The learned
counsel, on the contrary, argues that having decided to extend
the concept of divorce by mutual consent to the members of the
Christian community by introduction of Sec.10A of the Divorce
W.P.(C) No. 20076 of 2009 -: 33 :-
Act, there is no basis whatsoever for the contention that they
must alone wait for a longer period of minimum mandatory
separate residence. The concept of indissolubility of marriage
was available in the Indian and Christian thought and the
attempt to justify prescription of a discriminatory provision on
the mere basis of "demands from the community" is not
justified, it is urged.
39. The learned counsel further contend that even
parliamentary discussions show that this prescription was
questioned and the right of the clergy who are not married men
to give authentic opinion regarding marriage on behalf of the
laity was questioned even in Parliament. We need not enter into
that domain at all. We need only note that having chosen to
introduce the concept of dissolution of marriage by mutual
consent, prescription of a longer period does appear to offend
the mandate of equality undoubtedly. The attempt to justify the
same on the vague and assumed basis of demands from the
community cannot be held to be sufficient to avoid the vice of
arbitrariness.
40. With the help of the decision in Karnataka Bank
Ltd., v. State of Andhra Pradesh (2008 (2) SCC 254) it is
argued by the learned ASGI that in pronouncing the
constitutional validity of a statute the court is not concerned with
W.P.(C) No. 20076 of 2009 -: 34 :-
the wisdom or unwisdom, the justice or injustice of law. If that
which is passed into the law is within the scope of power
conferred on a legislature and violates no restriction of that
power the law must be upheld whatever a court may think of it.
It is further argued that the presumption of constitutionality
must apply to Sec.10A of the Divorce Act. The court cannot
lightly assume the same to be not fair, just and right or arbitrary,
fanciful and oppressive. It must be remembered that the wisdom
of the legislative policy is not to be questioned at all before the
courts.
41. We have no quarrel with this proposition. We are
reminded by learned counsel with the help of the decision in
A.L. Karle v. The Project and Equipment Corporation of
India Ltd., (AIR1984 SC 1361) that the wisdom of legislative
policy is not open to judicial review but when the wisdom takes
the concrete form of law, the same must stand the test of being
in tune with the fundamental rights and if it trenches upon any
of the fundamental rights it is void as ordained by Article 13 of
the Constitution.
42. In the domain of policy, it is the legislative decision
which will prevail. The wisdom or un-wisdom, justice or injustice
of the policy cannot be called in question in judicial review. But
when the wisdom takes the concrete form of law the legislative
W.P.(C) No. 20076 of 2009 -: 35 :-
provision will have to stand the test of Art.13 and if the
legislative stipulation offends any fundamental right under Part-
III of the Constitution Art.13 will come into operation and the
offending provision will have to be declared to be void.
43. Having considered all the relevant circumstances, we
are of the opinion that the stipulation of a higher period of two
years of mandatory minimum separate residence for those to
whom the Divorce Act applies, in contra-distinction to those
similarly placed to whom Sec.13B of the Hindu Marriage Act,
Sec.32B of the Parsi Marriage and Divorce Act and Sec.28 of the
Special Marriage Act would apply, offends the mandate of
equality and right to life under Arts.14 and 21 of the
Constitution.
44. What is to be the consequent order is the next
question. Applying the doctrine of severability as has been held
in D.S. Nakara v. Union of India (1983 SC 130) we are
satisfied that we will be well within the power of this Court to
read down such an unconstitutional provision which is unrelated
to the object sought to be achieved The stipulation of two years
can be severed and can be read down to one year to bring it to
be in conformity with the provisions of other laws to avoid the
vice of unconstitutionality.
45. We come back to the facts of the case. The marriage
W.P.(C) No. 20076 of 2009 -: 36 :-
was solemnized on 6/4/08. Separate residence commenced on
21/9/08. Separate residence has been there for a period
exceeding one year on the date of application. A period of six
months has already elapsed from the date of filing of the
petition. We are satisfied, in these circumstances, that a decree
for divorce can be granted as prayed for by the petitioners under
Sec.10A of the Divorce Act.
44. In the result:
(a) This writ petition is allowed.
(b) The stipulation in Sec.10A(1) of the Divorce Act that
the spouses must "have been living separately for a period of
two years or more" is declared to be unconstitutional as the
stipulation of the period of "two years" therein violates the
fundamental rights to equality and the right to life under Arts.14
and 21 of the Constitution.
(c) To save the provision and to avoid the vice of
unconstitutionality the period of "two years" stipulated in
Sec.10A of the Divorce Act is read down to a period of "one
year".
(d) The common impugned order passed by the court
below is set aside. It is found that the petitioners are entitled to
a decree for divorce under Sec.10A of the Divorce Act.
(e) Invoking the powers of the Family Court under Sec.10A
W.P.(C) No. 20076 of 2009 -: 37 :-
of the Divorce Act as so read down, the marriage between the
petitioner and the second respondent solemnized on 6/4/08 is
hereby dissolved under Sec.10A of the Divorce Act.
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