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4. The learned District Judge, on a consideration of the entire material on record, came to the conclusion that the petitioner failed to prove adultery muchless incestuous adultery as well as adultery, coupled with cruelty and desertion. However, he felt that the marriage tie between the petitioner and the first respondent has broken down irretrievably, and the parties have been living apart for the last more than 8 years, and as such, there is no justification to stand in the way of their seeking dissolution of the marriage, as it would be laudable for an orderly society to allow them to marry again the spouse of their choice and accordingly allowed the petition and granted a decree of divorce in favour of the petitioner against the first respondent subject to the confirmation of the High Court. This is how this case is posted before this Special Bench under Section 20 of the Act.

5. A Full Bench of this Court in YOUTH WELFARE FEDERATION represented by its Chairman, K.J. Prasad v. Union of India represented by its Secretary, Law Deptt., New Delhi, (FB), felt that Section 10 of the Act is inconsistent with Article 14 of the Constitution, inasmuch as pronounced discrimination between the husband and wife who is subjected to more onerous grounds to obtain divorce than the husband, and as such, in view of the sex discrimination, the offending portions of Section 10 of the Act which are easily severable without affecting the other parts of the Section, should be removed and accordingly struck down the words "incestuous" and "adultery coupled with" occurring in Section 10 of the Act. After tailoring, as done by the Full Bench, the Section reads as follows :

15. Therefore, we are of the opinion that the grounds which are available to the wife under Section 10 should also be made available to the husband in a petition filed by him 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 anamoly 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. Unless special provision is made for men and women as contemplated under Article 15(3) of the Constitution of India and which passes the test of reasonableness for survival it is irresistible that men and women have to be provided similar grounds for dissolution of marriage except one which is unique for men or women in the existing provision after the words "incestuous" "adultery coupled with" at two places in the said section are omitted, read with the existence of such words in the section which separate the grounds for husband and wife for seeking dissolution of marriage, the above cannot be achieved. To harmonise thus the surviving provision of Section 10 for dissolution of marriage, since dissolution of marriage has to be continued as a provision in the Indian Divorce Act, such words in the Section which appear to separate the grounds for divorce by dissolution of marriage between husband and wife have to be deleted and the sentences organised to read harmoniously in a manner that common grounds become available to husband and the wife. Section 10 as it was originally enacted was not suffering any anomoly and literal construction could be done to give full meaning to all the words used for providing the grounds for dissolution of marriage. Deletion the words of discrimination by the Full Bench in Youth Welfare Federation case (supra), we have ijeasons to hold is not intended to introduce a new kind of discrimination between the husband and the wife while seeking dissolution of marriage. That we read the Section to introduce the grounds in the second part of the Section 10 by overlooking the words which appear to introduce separate grounds for husband and wife as common grounds for dissolution of marriage both for husband and wife is no violation either of the intention of the Legislature or the statute as such. We thus hold as held by us earlier in the judgment that the Parliament should immediately take note of the discrimination writ large between the grounds available to the wife and husband in a petition for divorce. So long a new legislation does not come to occupy the field, the grounds available to the wife for divorce shall be, available to husband as well. Wedo so, as unquestionably that construction which is inconsonance with the common law and in our country with the Constitution of India has to be accepted which would promote the intentions of the Constitution and the common law and not one which would conflict with the same. Suffice it for the present that the wife, who is the petitioner herein, has established that there is desertion by her husband without reasonable excuse for two years or upwards. On this basis, we are inclined to affirm the decree for divorce gran ted by the learned District Judge although not on the ground that there is irretrievable incompatibility between the spouses. The decree is accordingly affirmed. No costs.