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11. From a totally indissoluble institution, winds of change have swept the institution of marriage. Initially divorces on the ground of marital contumaciousness and non-existence of vitals necessary to make a marriage work were recognised by law. But later it was recognised that matrimony is after all a human institution - a bond created by exercise of the free act of will by the partners who are responsible; but fallible individuals who may err and blunder. With this emerged the concept of divorce by mutual consent. When the partners find it impossible to live out their lives with happiness and meaningfully, they were granted the option in law to walk out of such marriage subject to conditions by mutual consent. Today, most modern systems of jurisprudence recognise and accept the right of the spouses to get their marriage dissolved by mutual consent. This transformation in the concept of marriage and its dissolution and acceptance of those altered concepts by the legal systems did not take place one fine morning. Many a battle had to be fought socially and legally before the concept of divorce by mutual consent was accepted by the polity and approved by the legislature. The Indian experiment shows that the Special Marriage Act, 1954 in Sec.28 recognised the concept of  dissolution of a secular marriage by mutual consent. Long later, in 1976 the concept of divorce by mutual consent was accepted and recognised under the Hindu Marriage Act. Still later in 1988 the Parsi Marriage and Divorce Act in Sec.32B accepted and recognised the concept of divorce by mutual consent. To get the concept introduced into the Divorce Act, 1869 we had to wait for a lot more of time. In 2001, after the Courts and the Law Commission incessantly demanded the incorporation of such a provision, Sec.10A of the Divorce Act found its way into the Act. It is thus that the concept of divorce by mutual consent was accepted under the Divorce Act.

29. They argue that concept of divorce by mutual consent is unknown to the Christian personal law. It is not modification or amendment of an existing stipulation regarding divorce applicable to Christians. Sec.10A attempts to introduce the secular concept of divorce by mutual consent into the personal law. Christian, Hindu or Parsi religions had not permitted divorce by mutual consent under their traditional personal law. The concept is alien to all these religions identically. The secular concept of divorce by mutual consent had gained currency and acceptance in the system. There was demand from members of these communities that such concept must be made applicable to them and they should not be denied the benefit of such divorce by mutual consent merely because they had chosen to get their marriages solemnised by following the traditional rites available in their community. It is this demand - by people  of all religions that the secular concept of divorce by mutual consent must be made applicable to them also that prompted the legislature to bring in amendments to the personal laws by Acts of Parliament. The classification is not on the basis of religion. The classification is on the basis that the beneficiaries are spouses who want the benefit of divorce by mutual consent, notwithstanding the fact that they belong to a religion which does not recognize divorce by mutual consent and have got their marriages solemnised by observing religious rituals and rites. Those who belong to such a group cannot be discriminated on the basis of their religion. The community may initially have been unwilling to accept such an altered progressive concept regarding divorce. The provision may have been introduced into the Divorce Act belatedly on account of such assumption of parliament about reluctance of the community to accept change. But having chosen to introduce the provisions relating to divorce by mutual consent into the Christian law of divorce and having decided to make the said benefit available to them, the legislature is not justified in discriminating against Christians who belong to that larger group of spouses wanting the benefit of the secular concept of divorce by mutual consent solely on the basis of their religion.

30. The argument in short is this. We belong to a larger  group of Indians who do not want religion to interfere with our right to claim divorce by mutual consent. It is for the benefit such larger group of Indians that the legislature has chosen to introduce the concept of divorce by mutual consent. To those who had married under the secular Special Marriage Act the benefit was made available in 1954 when Sec.28 of the Special Marriage Act was enacted. In 1956 it was made applicable to the Hindus in the group. In 1988 it was made applicable to Parsis in the group. In 2001 it was made applicable to Christians in that group. For Muslim this is not necessary as they can get their marriage dissolved by mutual consent already under their personal laws without the intervention of the court. Now the concept of divorce by mutual consent is applicable to all Indians. Having made it applicable to all Indians belonging to that group, it is not constitutionally right, just or fair to discriminate among the Christian members of the group/classification on the ground of their religion and to insist on a longer period of mandatory minimum separate residence so far as they are concerned.

33. Art.44 of the Constitution mandates that there must be  a uniform civil code in India. All Indians ideally will have to come under the umbrella of a uniform civil code which will contribute to the creation of national identity and character. Persons who have imbibed the core constitutional value of secularism and the constitutional dream of the polity having a uniform Indian civil laws are members of the classified group to whom this law is expected to cater. Sec.28 of the Special Marriage Act, Sec.13B of the Hindu Marriage Act, Sec.32B of the Parsi Marriage and Sec.10A of the Divorce Act are all attempts of the legislature to make the law of divorce by mutual consent applicable to this broad classification/group of individuals. The law classifies them into one group and makes the benefit of the concept of divorce by mutual consent, unknown to their respective traditional personal law, available to them. Due to pressure of obscurantist religious groups this could not evidently be introduced simultaneously by Parliament by enacting a law applicable to all in the group. Progressively one by one the benefit has been extended to the followers of all religions. When the legislature has perceived that the time is ripe to extend the benefit of the concept to a particular community, to further discriminate them on the basis of their religion is certainly anathema to law. It offends the principle of equality. The stipulation of the longer period of mandatory separate residence,  the differential, has no rational relationship to the object sought to be achieved. In short, we agree that classifying persons into one group to extend the benefit of the secular concept of divorce by mutual consent to them by progressive amendment of the personal law though in stages and later discriminating among them on the basis of religion by prescription of a longer period of mandatory minimum separate residence clearly offends the mandate of equality under Art.14 of the Constitution. We take the view that such prescription offends Art.14 and must hence be held to be unconstitutional.