Report No. 90

2.3. Discrimination writ large in section 10 (First alternative).-

The first alternative put forth in the Working Paper focussed attention on the element of discrimination from which section 10 of the Indian Divorce Act, 1869 seemed to suffer in the Commission's view. This is apart from any other question that may fall to be considered as to the merits of the existing law as tested in the light of the present day social notions in regard to affairs of the family. The Commission was of the view that the provision in section 10 (as it now stands)1 was blatantly discriminatory against Christian women.

The matter would be clear if one compares the position regarding the two sexes under the section. The ground of divorce available to the Christian husband under this section is expressed simply as "adultery"-no other fact need be proved by the husband. But the ground of divorce available to the wife is expressed in very narrow terms in the section. To mention the position very briefly, the section requires proof by the wife of one or other of the following acts of the husband-(a) conversion accompanied by another marriage, or (b) rape, sodomy or bestiality, or (c) adultery, which, however, must be accompanied by some particular aggravating quality factor or circumstance specified in the section. Briefly, the section requires that the adultery committed by the husband must have been

(i) incestuous, or (ii) accompanied by bigamy, or (iii) accompanied by "marriage with another woman", or (iv) coupled with such cruelty as would itself have entitled a woman to a divorce a mensa et toro, (v) coupled with desertion without reasonable excuse for at least two years.

Thus, the woman is placed in a much more unfavourable position than the man, since she is required to prove, besides adultery, one or other of the additional facts enumerated above. In so far as the present provision in section 10, Indian Divorce Act, 1869, has imposed on the Christian woman these stringent limitations in regard to adultery as a ground of divorce, it appears to be violative of Article 14 of the Constitution. Notwithstanding judicial dicta to the contrary,2 this seems to be the proper view to take. Under Article 14 of the Constitution, the State must not deny to any person equality before the law or the equal protection of the laws within the territory of India. Section 10 violates that mandate.

Further, section 10 would seem to violate Article 15(1) of the Constitution, under which "the State shall not discriminate against any citizen on ground only of religion, race, caste, sex, place of birth or any of them." The Constitution favours special provision for women, but not against them.3 Therefore, there is an urgent need to remove the discrimination that is writ large in section 10, Indian Divorce Act, 1869 and to introduce equal treatment of the sexes. This was the first-and the most urgent-question to be considered, according to the Commission, and was the first alternative put forth in the Working Paper.

1. Para. 2.1, supra.

2. Dwarkabai v. Narhan, AIR 1953 Mad 792.

3. Yusuf v. State, AIR 1954 SC 321: 1954 SCR 930.