Kumar Mahsi Vs. Union of India  INSC 390 (20 July 1994)
P.B. Sawant, P.B. Yogeshwar Dayal (J)
1994 SCC (5) 704 JT 1994 (4) 409 1994 SCALE (3)447
Judgment of the Court was delivered by SAWANT, J.- The hearing of this petition
is confined only to examining the vires of Section 10 of the Indian Divorce
Act, 1869 (hereinafter referred to as the 'Act'). The petitioner was married to
Respondent 2, Monika on 8-10-1986 as per the Christian rites in a Methodist Church at Muzaffarpur in Bihar.
After marriage, the parties returned to Delhi on 10- 10-1986. Respondent-Monika, however, left
the matrimonial home on 26-12-1986, i.e., two months and a fortnight
thereafter and never returned to it again. It is not in dispute
(respondent-Monika has not filed any counter to the petition) that the parties
have been living separately since the day of the desertion by Monika on 26-12-1986 as alleged in the petition. The petitioner further
alleges that she has been working as a teacher in St. Mary Girls' High School, Deogarh,
spite of notice to respondent-Monika and intimation to her that the petitioner
had deposited Rs 3000 for her costs in attending the Court and the assistance
of a Senior Advocate, Shri K.K. Venugopal is given to her to conduct her case,
she has neither filed counter, nor attended the Court.
the other hand, by a letter of 5-1-1993 she
has intimated the Court that she is unable to attend the Court and that she
would abide by the decision of the Court.
Since the vires of Section 10 was under challenge, notice was issued to the
Attorney General. The Attorney General, however, did not choose to put in his
were, however, ably assisted by Shri Venugopal, learned Senior Advocate
appointed to represent respondent-Monika.
the matter was heard, oral directions were given to the parties to submit their
written submissions. The petitioner was to file his written submissions first
and the respondents were to file the written submissions within two weeks
thereafter. In spite of our listing the matter on 19- 1-1994 again for reminding the parties to file their written
submissions, the petitioner has not done so and consequently the respondents
have not filed their written submissions.
are, therefore, proceeding to deliver this judgment on the basis of the oral
submissions and in the absence of the assistance of the Attorney General.
petitioner had initially challenged vires of Section 10 of the Act as being
arbitrary, discriminatory and violative of Articles 14, 19, 21 and 44. However,
the challenge on the ground of violation of Articles 19, 21 and 44 has not been
pressed. We may mention here that Article 44 was invoked since the other prayer
of the petitioner was to direct the first respondentUnion of India to enact a common civil code. That
relief is no longer pressed and, as stated earlier, the petition is confined to
the challenge to Section 10 of the Act on the ground of the violation of
Article 14 of the Constitution. The relevant portion of Section 10 reads as follows
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.
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;
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." 707 It will be apparent from
the aforesaid provisions that while the husband can seek dissolution of
marriage on the ground that his wife has been guilty of adultery simpliciter,
the wife has to prove that the husband has been guilty of adultery which is
coupled with marriage with another woman,
with cruelty which without adultery would have entitled her to divorce a mensa
with desertion without reasonable excuse for two years or upwards.
therefore, clear that as far as the ground of adultery is concerned, it is the
husband who is in a favourable position as against the wife, since it is not
enough for the wife to prove adultery simpliciter on the part of her husband.
To that extent, undoubtedly, it is the wife who is discriminated against. As
regards the other grounds which are available to the wife to claim dissolution
of the marriage, which grounds are impliedly not available to the husband, the
same are as follows
the husband has exchanged his profession of Christianity for the profession of
some other religion and gone through a form of marriage with another woman, and
the husband is guilty of rape, sodomy or bestiality. It will be evident from
these two grounds that a mere exchange of the profession of Christianity for
the profession of another religion on the part of the husband is not enough.
The wife has also to prove that the husband has married another woman. Since,
however, the husband can seek dissolution of the marriage only on the ground of
adultery, the husband is not at a disadvantage as against his wife because a
mere marriage with another man whether after exchanging the profession of
religion or not, would give a ground to the husband to seek dissolution of
marriage. It would thus be seen that even as far as this ground is concerned,
it is the wife who is at a disadvantage.
regards the only other grounds unavailable to the husband, they are of rape,
sodomy or bestiality. Although the modern usage of the word 'rape' extends also
to the forcible sexual intercourse by a woman with a man, the dictionary
meaning of the said word as well as the offence of rape as defined in the
Indian Penal Code speak only of forcible sexual intercourse by a man with a
woman. We have, therefore, to accept the latter meaning of the said word while
construing the provisions of the Act which is one of the vintage enactments on
our statute book. Hence, it cannot be said that there is any discrimination
between husband and wife because the ground of rape is not available to the
husband for dissolving the marriage.
regards sodomy, the word is defined in Black's Law Dictionary (5th Edn.) to mean
carnal copulation by human beings with each other against nature, or with a
beast. State v. Young, 140 Or. 228, 13 P. 2d 604, 607.
is oral or anal copulation between persons who are not husband and wife or
between consenting adult members of the opposite sex, or between a person and
an animal, or coitus with an animal. Kansas Criminal Code." 708 Shorter Oxford English Dictionary defines the word 'sodomy' to mean "An unnatural
form of sexual intercourse, esp. that of one male with another". Section
377 IPC defines "unnatural offences" as follows :
Unnatural offences.- Whoever voluntarily has carnal intercourse against the
order of nature with any man, woman or animal, shall be punished with
imprisonment for life, or with imprisonment of either description for a term
which may extend to ten years, and shall also be liable to fine.
Penetration is sufficient to constitute the camal intercourse necessary to the
offence described in this section."
can, therefore, be said that a woman can also be guilty of sodomy. So will be
the position in the case of the offence of bestiality. The discrimination,
therefore, can be alleged by the husband only on the basis that these two
grounds, viz., sodomy and bestiality, are not available to him for claiming dissolution
of his marriage whereas the same are available to the wife for the purpose.
Taking into consideration the muscularly weaker physique of the woman, her
general vulnerable physical and social condition and her defensive and
non-aggressive nature and role particularly in this country, the legislature
can hardly be faulted if the said two grounds are made available to the wife
and not to the husband for seeking dissolution of the marriage. For the same
reasons, it can hardly be said that on that account the provisions of Section
10 of the Act are discriminatory as against the husband.
therefore, find that there is no substance in the challenge by the
petitioner-husband to the vires of the provisions of Section 10 as being
discriminatory against the husband and, therefore, violative of Article 14 of
What is further, 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. They have the freedom to marry under the Special Marriage Act, 1954.
however, married under the Act and accepted its discipline, they cannot be
heard to complain of its rigors, if any.
this view of the matter, we find no merit in the petition and it is dismissed.
In the circumstances of the case, there will be no costs.