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Report No. 164

2.2 Discriminatory provision under section 10.-

Then again, under the Divorce Act, Christian spouses are not entitled to dissolution of marriage on the ground of cruelty or desertion, but are only entitled to judicial separation under section 22 which shall have the effect of a divorce a mensa et toro, that is separation only from "bed and board" whereunder matrimonial bond remains undissolved. But spouses married under the Special Marriage Act, 1954, Hindu, Bhuddhist, Sikh and Jain spouses governed by the Hindu Marriage Act, 1955, Zoroastrian spouses governed by the Parsi Marriage and Divorce Act, 1936, Muslim wives under the Dissolution of the Muslim Marriages Act, 1939, are entitled, to dissolution of marriage, and not merely judicial separation, on those grounds. Are we then discriminating against Christian spouses and that too, on the ground of their being Christian by religion and thus violating the mandate of Article 15 interdicting discrimination on the ground of Religion only?

2.2.1. K.T. Thomas, J. has also made the following observations and directions while passing an interim order1 [in O.P. No. 5805 of 19881:

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

After observing so, the learned Judge has directed the Union of India to take a final decision regarding the recommendations of the Law Commission in its 90th Report already referred to within a period of six months from the date of receipt of a copy of the said order. In spite of such a positive direction, no final decision to amend the law, has been taken though the direction was given on 13-12-1989.

1. O.P. No. 5805 of 1998 referred to in Mary Sonia v. Union Of India, 1995 (1) Ker LT 644.

2.3. In Mary Sonia v. Union of India, 1995 (1) Ker LT 644 (672), a Full Bench of the Kerala High Court has struck down the discriminatory words in section 10. The declaration granted by the High Court is in the following words:

"For all the above reasons, we would hold that the offending portions of the provisions as already indicated are severable and they are liable to be quashed as ultra vires. We would further hold that the remaining portions of the provisions can remain as valid provisions allowing dissolution of marriage on grounds of adultery simpliciter and desertion and/or cruelty independent of adultery. Adoption of such a course, in our view, would help to avoid striking down of the entire provisions in section 10 of the Act and to grant necessary reliefs to the petitioners and similarly situated Christian wives seeking dissolution of their marriage which has for all intents and purposes ceased to exist in reality. We would accordingly sever and quash the words "incestuous" and "adultery coupled with" from the provisions in section 10 of the Act and would declare that section 10 will remain hereafter-operative without the above words."

2.3.1. Having granted the aforesaid declaration, the Full Bench proceeded to make the following pertinent observations1:

"Before parting with this case, we would like to observe that in spite of a positive direction by Thomas, J. in these two Original Petitions which were filed in the year 1988, directing 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, no final decision has been taken in the matter till today. The direction issued was to take a decision within six months from the date of receipt of a copy of the order dated 13-12-1990. In spite of such a peremptory direction, the Central Government has not even cared to inform this Court about the decision if any taken in the matter till the fag end of the arguments in this case when the Central Government Pleader has produced the communication to which we have already referred to.

It is after taking note of, if we may say so, the totally intransigent attitude adopted by the Central Government in the matter of taking a final decision regarding the amendment of the law on the point which was recommended by successive Law Commissions of India at least from 1961 onwards and the various courts in India through their observations and directions including the positive direction in this case, that we have decided to consider the matter on merits and to grant the reliefs prayed for, assuming the role of the reformer to the extent legally permissible as an attempt to bridge the gap between the personal laws."

1. Id., p. 673.

2.4. In Youth Welfare Federation (represented by its Chairman, K.J. Prasad) v. Union of India, (1996) 4 Andh LJ 1138, a Full Bench of the Andhra Pradesh High Court held that section 10 of the Indian Divorce Act, 1869, is inconsistent with Article 14 of the Constitution, being discriminatory against wife "who is subjected to more onerous grounds to obtain divorce than the husband."

2.5. A Special Bench of the same Court in N. Sarada Mani v. G. Alexander, AIR 1998 AP 157 (161-162), again reiterated the view of the Full Bench as under:

"we are of the opinion that the grounds which are available to the wife (sic - "husband") under section 10 should also be made available to the husband (sic - "wife") in a petition filed by him (sic - "her") seeking divorce and the Parliament should immediately take note of the discrimination writ large between the grounds available to the wife and the husband in a petition for divorce. It is for the Parliament to take note of this anomaly and fill-in the void by suitable legislation. A pre-constitution discrimination by the provision in section 10 of the Indian Divorce Act, 1869, it is rightly held by the Full Bench in Youth Welfare Federation case (supra), cannot survive the test of equality between men and women as envisaged under Articles 14 and 15 of the Constitution of India."

[In Anil Kumar Mahsi v. Union of India, (1994) 5 SCC 704 (706), the Supreme Court of India, in another context, held that whereas husband could get dissolution of marriage on the ground of adultery simpliciter, wife had to prove that husband was guilty of not only adultery simpliciter but that adultery was: (i) incestuous, (ii) coupled with bigamy, (iii) coupled with marriage to another woman, (iv) coupled with cruelty which without adultery would have entitled her to divorce a mensa et Coro. To that extent, it was the wife who was discriminated against and at a disadvantage.]

2.6. Inasmuch as the aforesaid decisions of the High Courts have no binding effect in States other than where they are located, and also because, the whole Act needs to be replaced by a new and modern legislation, it is absolutely essential to enact a new law on the lines of the draft Bill prepared by the Law Commission and reiterated by it again under the Chairmanship of Mr. Justice K.K. Mathew, former Judge, Supreme Court of India, which is enclosed to the Reports of the Law Commission referred to hereinabove.

Indian Divorce Act, 1869 Back

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