Document Fragment View

Matching Fragments

6. The petitioners have thus contended that Section 10 of the Act in so far as it makes adultery also necessary to be established along with cruelty and desertion as a ground for divorce is arbitrary, authoritarian and violative of the fundamental rights under Articles 14, 15, 19 and 21 of the Constitution of India.

7. The petitioner in O. P. No. 5805 of 1988 has further contended that Section 10 of the Act in so far as it incorporates the word 'incestuous' before the word 'adultery' thereby making in aggravated form of adultery alone as a ground for divorce for Christian woman whereas all other Indians including Christian men are entitled to get divorce on the ground of adultery simpliciter is violative of Articles 14, 15 and 21 of the Constitution of India.

8. The substantive reliefs prayed for in the two O.Ps. can be summarised thus: (1) to declare that Section 10 of the Act in so far as it incorporates the word 'incestuous' before the word 'adultery' the words 'adultery coupled with' occurring before 'such cruelty as without adultery would have entitled her to a divorce a mensa et toro' and 'desertion without reasonable excuse for two years or upwards' is violative of Articles 14, 15, 19 and 21 of the Constitution of India, and (2) to declare that 'adultery', 'such cruelty as without adultery would have entitled to a divorce mensa et toro' and 'desertion without reasonable excuse for two years or upwards' are grounds for dissolution of marriage for a wife under the Act.

9. Union of India has filed a counter affidavit opposing the reliefs prayed for in the O.Ps. and raising mainly the following contentions. Though the Matrimonial Causes Act, 1857, following which the Act was framed has undergone various drastic changes, the Act has remained in force unchanged till date. In spite of repeated recommendations made by the Law Commission of India for amending the law regarding marriage and divorce among Christians, Government was not able to undertake any legislations to amend the law in view of the strong opposition from the community itself. So far the constitutionality of the provisions contained in Section 10 of the Act has been upheld by various courts including the Supreme Court whenever such challenge had been made in the past. Different personal laws are applicable to different communities in India. The debates of the constituent Assembly relating to Article 35 of the draft constitution corresponding to Article 44 of the constitution leave no scope for doubt with regard to the fact that the constitution makers envisaged the continuance of personal laws applicable to different communities for quite sometime, if not indefinitely. Only by legislation amendment can be brought to the provisions in the Act, So long as such pre-consti-tutional personal laws are not changed by the legislature, such laws are protected by Article 13 of the Constitution of India. While changing a personal law like the Act, Government have necessarily to take into account the readiness of the community to accept reforms. So far the community has not expressed its readiness to accept the reforms proposed to the personal law governing marriage and divorce among Christians. As regards the scope of judicial intervention by Court, it has been consistently held by all the Courts that Section 10 of the Act specifically sets forth the grounds on which the marriage can be dissolved and no additional grounds can be included by judicial construction of similar provisions in other enactments unless the section plainly comprehends such grounds. No parallel can be drawn between the personal laws relating to one community and another community for making a ground of discrimination. Grounds for divorce are bound to differ from one law to the other depending upon the community to which it concerns. The challenge raised against the provisions based upon the alleged violation of the fundamental rights guaranteed under Articles 14, 15 and 21 of the Constitution cannot be sustained in view of the fact that there is in built provisions in the constitution itself for treating different sections of the people differently. When one gets married voluntarily in accordance with the provisions of the Act and is governed by the Act, it may not be possible for him or her to contend that he is not bound by the provisions in the Act as far as the claim for divorce is concerned. He or she will be estopped from challenging the validity of such provisions on any ground including violation of fundamental rights. Even if it is found that any part of Section is unconstitutional the only course open to the court is to quash the section as a whole or to leave the section as such for legislative intervention and amendment pointing out the need for amending the section suitably. No declaration as prayed for declaring the provision partly unconstitutional and to retain the rest as valid is permissible since the section represents'a comprehensive scheme to regulate divorce among the married Christians in general. If adultery simpliciter, cruelty and desertion for a period of 2 years or upwards are retained as independent grounds severing the words 'incestuous' and 'adultery coupled with' from the relevant provisions in section of the Act, it will be substituting entirely new grounds different from the one provided by the legislature contrary to the scheme contemplated by Section 10 of the Act. It will amount to judicial legislation or rewriting of a provision in an enactment which may not be justifiable in law. If so rewritten, the provision will be clearly discriminatory as far as the husband is concerned since the husband will be entitled to seek divorce only on the ground of adultery while the wife will be entitled to get divorce on several other grounds including adultery. If it is held so, it will upset the scheme of legislation namely to allow divorce for wife on grounds more stringent than the ground on which the husband can get divorce. It will also totally upset the scheme envisaged by the impugned Section and enable the wife to get divorce more easily on several grounds and will place the husband in a very disadvantageous position. It was also contended that such a situation will lead to further challenge against the rewritten Section also at the hands of the husbands and the Court may have to declare such Section also totally bad. It was submitted that on that ground also the relief prayed for are liable to be refused.

or of rape, sodomy or bestiality.
or of adultery coupled with such cruelty as without adultery would have entitled her to a divorce a mansa et toro, or of adultery coupled with desertion, without reasonable excuse, for two years or upwards.

13. It is evident from the Section that as far as the husband is concerned, the only ground on which he can seek dissolution of marriage is adultery. But at the same time it is important to note that he need establish only adultery committed by the wife since solemnisation of the marriage. On the other hand, as far as the wife is concerned, though she has got a number of grounds for seeking dissolution of marriage adultery simpliciter is not a ground for divorce unlike the husband. As far as the wife is concerned, she has to establish not only adultery of her husband but also that the husband is guilty of either 'incestuous adultery' or 'such cruelty as without adultery would have entitled to a divorce mansa et toro' or 'desertion without reasonable excuse for two years or upwards'. Thus even if a wife is able to prove that her husband is living in adultery or that he is guilty of treating her with cruelty habitually and persistently or that he has deserted her for ever, she may not be entitled to get dissolution of her marriage with the husband who perpetrates such activities destructive of not only natural love and affection which is the very basis of the institution of the marriage but also of human dignity.