Report No. 90

Chapter 5

Mutual Consent

5.1. Mutual consent-observations in Supreme Court judgment.-

We now proceed to the question whether divorce should be allowed on mutual consent. The question how far mutual consent is a ground of divorce under the Indian Divorce Act, 1869 came up recently for consideration before the Supreme Court.1 It was held that the Court cannot add a new ground of divorce to those mentioned in section 10 of the Act and resort could not be had to section 7 of the Act for expanding the grounds of divorce on the lines of the grounds recognised in England. The judges pointed out that it was for Parliament to consider whether a provision for divorce by mutual consent should be included in the Act. The Court could not extend or enlarge legislative policy by adding to the statute a provision which was never enacted. One of the judges, Mr. Justice Chinnappa Reddy, in his concurring judgment, after stressing the need for equality between the sexes and social justice, made the following observations as to reform of the law on the subject:

"Yes, I agree with Miss Lily Thomas (Counsel for appellants) that divorce by mutual consent should be available to every married couple, whatever religion they may profess and however they were married. Let no one compel the union of man and woman who have agreed on separation. If they desire to be two, why should the one insist that they be one?"

However, these observations are suffixed by a qualification expressed as under:-

'But I have a qualification. The woman must be protected. Our society still looks askance at a divorced woman. A Woman divorce is yet a suspect. Her chances of survival are diminished by the divorce so, the law which grants the decree for divorce must secure for her some measure of economic-independence. It should be so whatever be the ground for divorce, whether it is mutual consent, irretrievable break-down of the marriage, or even the fault of the woman herself.

Every divorce solves a problem and creates another. Both problems need to be solved, no matter who is responsible for the breakdown of the marriage. If the divorce law is to be a real success, it should make provision for the economic independence of the female spouse. After all, Indian society today is so constituted that a woman is a generally helpless and her position becomes worse if she is divorced. It is necessary that the law should protect her interest even if she be an erring spouse, lest she becomes destitute and a dead loss to society."

1. Raynold Rajamani v. Union of India, AIR 1982 SC 1261 (1265) (September).