2010 (1) KLT
869
Hon'ble Mr. Justice R. Basant & Hon'ble Mrs.
Justice M.C. Hari Rani
Saumya Ann Thomas v. Union of India
W.P.(C) No.20076 of 2009 and connected cases
Decided on 25th February, 2010
Divorce Act 1869, S. 10A( 1) & 10A( 2) - There is no provision express or
implied which can enable court to waive/reduce mandatory minimum period of
separate residence stipulated under S.10A.
Summary
Questions raised are:
(i) Whether
provisions of S.10 (A) can be severed and be read down to one year to bring it
to be in conformity with the provisions of other laws to avoid the vice of
unconstitutionality ?
(ii) Whether
stipulation of a higher period of two years of mandatory minimum separate
residence for those to whom Divorce Act applies in contradistinction to those
similarly placed, offends mandates of equality and right to life under Arts.14
& 21 ?
(iii) Whether S.10A which amends personal law, will
have to satisfy Part III of Constitution and hence open to challenge under Art.13
?
(iv) Whether Courts other than Supreme Court has
power to waive/reduce mandatory minimum period of separate residence stipulated
under S.10A ?
a prayer that marital tie may be dissolved by a decree
of mutual consent under S.10A of Divorce Act. They filed I.A. to dispense with
waiting period of six months under S.10A(2). By impugned order, Court rejected
both applications holding that period of two years having not elapsed from the
date of commencement of separate residence, joint petition under S.10A is not
maintainable. Same is challenged.
High Court held that (i) There is no provision express
or implied which enable court to waive/reduce mandatory minimum period of
separate residence stipulated under S.10A (ii) No Court other than Supreme
Court invoking its power under Art.142 can dispense with mandatory period of 6
months specified under S.10A(2) (iii) Notwithstanding the fact that S.10A
amends personal law, it will have to satisfy Part III of Constitution and hence
will be open to challenge under Art.13 (iv) Stipulation of a higher period of
two years of mandatory minimum separate residence for those to whom Divorce Act
applies in contradistinction to those similarly placed to whom S.13B of Hindu
Marriage Act, S.32 of Parsi Marriage and Divorce Act and S.28 of Special
Marriage Act would apply, offends mandates of equality and right to life under
Arts.14 & 21. (v) The stipulation of two years can be severed and can be
read down to one year to bring it to be in conformity with the provisions of
other laws to avoid the vice of unconstitutionality.
Held: Four
conditions must co-exist to justify an application for divorce. There is no
provision - express or implied, which can enable the court to waive/reduce the
mandatory minimum period of separate residence stipulated under S.10A. That
contention cannot hence be accepted at all. There was a contention raised at
the Bar initially that it is enough that conditions A and B specified above
along with condition C and/or D alone need be satisfied. After detailed
discussions at the Bar, that contention is not pressed. We are not hence
delving deeper into that contention. Suffice it to say that such a contention
is not justified by the language of S.10A. All the above four pre conditions -
A, B, C and D must co-exist to justify institution of proceedings for dissolution
of marriage by mutual consent under S.10A(1) of the Divorce Act. (paras. 7 & 8)
Divorce Act 1869, S. 10A( 2) - No Court
other than Supreme Court invoking its power under Art.142 can dispense with
mandatory period of six months specified under S.10A(2).
No court other than the Supreme Court invoking its
power under Art.142 of the Constitution can dispense with the mandatory period
of six months specified under S.10A(2) of the Divorce Act. (para.
9)
(2009) 12 SCALE 115 Referred to
Constitution of India, Art. 13 - Divorce
Act 1869, S. 10A - Notwithstanding the fact that S.10A amends personal law, it
will have to satisfy Part III of Constitution and will hence be open to
challenge under Art.13.
We have serious doubts about the proposition that a
piece of personal law - whether statutory or precedent recognised or otherwise,
will not be law or law in force within the meaning of Art.13 of the
Constitution. This would go against the fundamental and core constitutional
values as also the scheme of Art.13 of the Constitution. All laws whether pre
constitutional or post constitutional will have to pass the test of
constitutionality. We find no reason, in a secular republic, to cull out
“personal law” alone and exempt the same from the sweep of Art.13 and Part III
of the Constitution. A piece of personal law also binds citizens. It is as much
a piece of enforceable law notwithstanding the fact that such principles of
personal law may not be statutory law and may only have been accepted and
enforced by the sovereign and acted upon by the courts for a long period of
time. Art.13 assures the citizen that pre- constitutional or
post-constitutional laws shall not be permitted to eat into space of
fundamental rights reserved by 'we the people of India' in favour of themselves
while giving unto themselves the constitution. S.10A has been introduced into
the Divorce Act by the legislative act of Parliament. Notwithstanding the fact
that such statutory law amends the personal law, it will certainly have to
satisfy Part III of the Constitution and will hence be open to challenge under
Art.13. (paras. 23 & 24)
AIR 1952 Bom. 84 & 1999 (2) KLJ 824 Not Followed
1995 (1) KLT 644 (F.B.); 1971 KLT 684 &
AIR 1992 Bom. 214 Relied
on
(1981) 3 SCC 689 Referred
t o
Divorce Act 1869, S. 10A - Constitution
of India, Art. 14 & Art. 21 - Stipulation of a higher period of two years
of mandatory minimum separate residence for those to whom Divorce Act applies,
in contradistinction to those similarly placed to whom S.13B of Hindu Marriage
Act S.32 of Parsi Marriage and Divorce Act and S.28 of Special Marriage Act
would apply, offends mandates of equality and right to life under Arts.14 &
21.
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. Such
prescription offends Art.14 and must hence be held to be unconstitutional.
Right to marry and the right to secure divorce must be reckoned as basic and
essential incidents of the right to life. Right to life cannot be controlled,
regulated or denied except by procedure established by law. This procedure
cannot be arbitrary, fanciful or oppressive and must necessarily answer the
test of fairness, propriety and reasonableness. The prescription of the period
of mandatory minimum separate residence has an objective to serve, that is to
ensure the interests of sufficient forethought and contemplation before an
application is filed. Even thereafter, the contemplation must continue. The
stipulation of the period of minimum mandatory separate residence thus serves
this purpose. Considering the purpose and the group of people to which such
purpose is to apply and operate, we find the stipulation of different periods
for different religions totally unjustified. That renders the stipulation not
fair, just and right. It renders the stipulation unreasonable, arbitrary,
fanciful and oppressive. In that view of the matter, we are satisfied that
Art.21 of the Constitution is also offended by the prescription of a separate,
different and longer period of mandatory minimum separate residence for those
to whom the Divorce Act applies. Having brought all persons belonging to all
religions within a group/classification for the purpose of extending the
benefit of the concept of divorce by mutual consent and having chosen to make
that benefit available to members of all the communities within the group,
later stipulation of a different more onerous period to one sub group alone
on the basis of the unreasonable and
irrelevant basis of religion does certainly, according to us, offend the
mandate of right to life under Art.21 of the Constitution. That the
discrimination manifests itself not in one common statute but in a separate
statute applicable to the victims of discrimination is not relevant while
considering the challenge against the unconstitutional discrimination. (paras. 33, 35 & 37)
Divorce Act 1869, S. 10A - Constitution
of India, Art. 13 & Art.226 - The stipulation of two years can be severed
and can be read down to one year to bring it to be in conformity with the
provisions of other laws to avoid the vice of unconstitutionality.
The wisdom of legislative policy is not open to
judicial review but when the wisdom takes the concrete form of law, the same
must stand the test of being in tune with the fundamental rights and if it
trenches upon any of the fundamental rights it is void as ordained by Art.13 of
the Constitution. In the domain of policy, it is the legislative decision which
will prevail. The wisdom or un-wisdom, justice or injustice of the policy
cannot be called in question in judicial review. But when the wisdom takes the
concrete form of law the legislative provision will have to stand the test of
Art.13 and if the legislative stipulation offends any fundamental right under
Part- III of the Constitution Art.13 will come into operation and the offending
provision will have to be declared to be void. The stipulation of a higher
period of two years of mandatory minimum separate residence for those to whom
the Divorce Act applies, in contra-distinction to those similarly placed to
whom S.13B of the Hindu Marriage Act, S.32B of the Parsi Marriage and Divorce
Act and S.28 of the Special Marriage Act would apply, offends the mandate of
equality and right to life under Arts.14 and 21 of the Constitution. Applying
the doctrine of severability, we are satisfied that we will be well within the
power of this Court to read down such an unconstitutional provision which is
unrelated to the object sought to be achieved. The stipulation of two years can
be severed and can be read down to one year to bring it to be in conformity
with the provisions of other laws to avoid the vice of unconstitutionality. (paras. 41, 42, 43 & 44)
P.B. Sahasranaman, T.S. Harikumar,
Liji J. Vadakedam, H.B. Shenoy & K. Jagadeesh For Petitioner
P. Pratheesh, S. Sudheeshkar,
K. Siju, P.A. Jacob Vaidyan,
P. Parameswaran Nair (Asst. Solicitor General) &
T.P.M. Ibrahim Khan (Asst. Solicitor General) For Respondent
G. Shrikumar As
Amicus curiae
JUDGMENT
R. Basant,J.
Is
the stipulation of a period of two years as the minimum mandatory period of
separate residence in S.10A(1) of the Divorce Act right, just and fair? Is it
arbitrary, fanciful and oppressive? Does that stipulation offend Art.14 and/or
Art.21 of the Constitution? Does that stipulation deserve to be read down to
“one year” to save the provision from the vice of unconstitutionality? These
interesting contentions are raised for our consideration in this Writ Petition.
2.
These questions arose for consideration before us in this Writ Petition as also
in W.P.(C) No.24219/08. Both were heard together. We have had the advantage of
hearing Sri. G.Shrikumar, the learned counsel who was requested to render
assistance as amicus curiae to this Court. We have also heard the
arguments of Advocates M/s T.S. Harikumar, Liji J. Vadakkedom, H.B. Shenoy and
T.P.M. Ibrahim Khan, the learned Assistant Solicitor General of India. W.P.(C)
No.24219/08 is being disposed of by a separate judgment in view of certain vital
difference in the facts scenario in that case. In fact we note that the bulk of
arguments were advanced in W.P.(C) No.24219/08. We must straightaway record our
appreciation for the able and effective assistance rendered to us by
Sri.G.Shrikumar who appeared as amicus curiae as also Advocate Sri. Ligi
J. Vadakkedom who appeared for one of the parties.
3.
To the vital and crucial facts first. The petitioner and the 2nd respondent are
spouses. They are Christians by faith. Their marriage was solemnized on 6.4.08
in accordance with Christian religious rites. Differences and disagreements
arose instantly after marriage and the spouses started separate residence with
effect from 21.9.08. The petitioner herein filed an application for divorce on
5.12.08. That petition was numbered as O.P.No.1313/08. During the pendency of
that petition, the parties appear to have settled all their outstanding
disputes. They entered into Ext.P1 agreement. They consequently filed
I.A.No.536/09 with a prayer that the marital tie may be dissolved by a decree
for divorce on mutual consent under S.10A of the Divorce Act. They filed
I.A.No.537/09 to dispense with the waiting period of six months under S.10A(2)
of the Divorce Act. By the impugned order, the court below rejected both the applications
holding that the period of two years having not elapsed admittedly from the
date of commencement of separate residence, this joint petition under S.10A of
the Divorce Act is not maintainable.
4.
The learned counsel for the petitioner as also the learned counsel for the 2nd
respondent have been heard. The learned counsel for the spouses assail the
impugned order on the following grounds:
1.
The period of two years stipulated under S.10A(1) and the period of six months
stipulated under S.10A(2) of the Divorce Act must have been waived and
dispensed with by the learned Judge of the Family Court.
2.
The stipulation of a period of two years under S.10A(1) is arbitrary,
capricious and fanciful; is not fair, just, right and reasonable and
consequently offends the right to equality of the petitioner under Art.14 of
the Constitution and her right to life under Art.21 of the Constitution. The
same is liable to be read down as one year and consequently divorce under S.10A
of the Divorce Act is liable to be granted.
5.
To appreciate this contention raised, we deem it necessary to extract S.10A of
the Divorce Act. It reads thus:
“10A.
Dissolution of marriage by mutual consent.-- (1) Subject to the provisions of this Act and the rules made thereunder,
a petition for dissolution of marriage may be presented
to
the District Court by both the parties to a marriage together, whether such
marriage was solemnised before or after the commencement of the Indian Divorce
(Amendment) Act, 2001, on the ground that they have been living separately for
a period of two years or more, that they have not been able to live
together and they have mutually agreed that the marriage should be dissolved.
(2)
On the motion of both the parties made not earlier than six months after the
date of presentation of the petition referred to in sub-s.(1) and not later
than eighteen months after the said date, if the petition is not withdrawn by
both the parties in the meantime, the Court shall, on being satisfied, after
hearing the parties and making such inquiry, as it thinks fit that a marriage
has been solemnised and that the averments in the petition are true, pass a
decree declaring the marriage to be dissolved with effect from the date of
decree. ”(emphasis supplied)
The
provision is in substance a verbatim reproduction of the provision in S.13B of
the Hindu Marriage Act, S.32B of the Parsi Marriage and Divorce Act and S.28 of
the Special Marriage Act. The only difference is that instead of the period of
two years mentioned in S.10A(1) emphasised above, one year is the period of
separate residence stipulated in those provisions.
6.
The first contention is that the period of two years under S.10A(1) and the
period of six months under S.10A(2) of the Divorce Act must have been waived by
the Family Court in its discretion. We find absolutely no merit in this
contention at all. Under the body of S.10A(1), four conditions must co-exist
before an application can be made. They are:
A. The marriage between the spouses must
have been solemnized;
B. They have mutually agreed that the
marriage should be dissolved by mutual consent;
C. That they have not been able to live
together; and
D. That they have been living separately
for a period of two years or more.
7.
We are satisfied that these are the essential
requirements/ingredients/preconditions which must be established to justify an
application for dissolution of marriage by mutual consent under S.10A(1). These
conditions must co-exist to justify an application for divorce. There is no
provision - express or implied, which can enable the court to waive/reduce the
mandatory minimum period of separate residence stipulated under S.10A. That
contention cannot hence be accepted at all.
8.
There was a contention raised at the Bar initially that it is enough that
conditions A and B specified above along with condition C and/or D alone need
be satisfied. After detailed discussions at the Bar, that contention is not
pressed. We are not hence delving deeper into that contention. Suffice it to
say that such a contention is not justified by the language of S.10A. All the
above four pre conditions - A, B, C and D must co-exist to justify institution
of proceedings for dissolution of marriage by mutual consent under S.10A(1) of
the Divorce Act.
9.
We may also mention that we find no merit in the contention that the period of
six months stipulated under S.10A(2) can and must have been waived by the
Family Court. We have already dealt with this question in detail in M.
Krishna Preetha v. Dr. Jayan
Moorkkanatt
& Anr. in Mat. Appeal
No.633/08 dated 22/2/2010. Following the decision of the Supreme Court in Anil
Kumar Jain v. Maya Jain (2009 (12) SCALE 115), we have held that no court
other than the Supreme Court invoking its power under Art.142 of the
Constitution can dispense with the mandatory period of six months specified
under S.10A(2) of the Divorce Act. In these circumstances, we find no merit in
the challenge raised on ground No.1 above.
10.
We now come to the second ground raised above. Marriage in the Christian and
Indian traditional thought has been accepted as an indissoluble sacrament.
Divorce and re-marriage which are common concepts today were unknown to these
systems of law. With passage of time marriage as a purely indissoluble sacrament
has undergone changes conceptually. Marriage today is not looked upon in law as
merely a divine institution made in heaven with the incident of
indissolubility. Marriage and its dissolution, in modern judicial and legal
thought, is reckoned as the incident of the human right of right to life.
Marriage today is a social institution of partnership, friendship, mutual
complementarity, love, affection, caring and sharing between two equal
partners. Partners walk into the institution of marriage purely based on their
consent and volition though after they enter such institution voluntarily, they
are bound by the legal norms, ideas and procedure.
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 S.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 S.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, S.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.
12.
But when the said provision was incorporated in the Divorce Act, surprisingly
instead of a period of one year as the mandatory minimum separate residence, a
period of two years was stipulated under S.10A(1) of the Divorce Act. It is
that stipulation which is challenged before us.
13.
It is contended that the incorporation and insistence of a longer period of
mandatory minimum separate residence so far as the persons to whom the Indian
Divorce Act applies is discriminatory. What is the justification for such a
longer period mandatory minimum separate residence for those to whom the Indian
Divorce Act applies; it is queried. It is argued that there is absolutely no
principle or reason that justifies insistence on such longer period of separate
residence so far as the Christians alone are concerned, to whom the Divorce Act
applies. The constitutional mandate of equality is offended, it is urged. The
core constitutional value of equality and equal protection of the law Art.14 of
the Constitution is offended, contend the counsel. If the mandatory minimum
period of separate residence of one year is sufficient for those to whom the
secular law of divorce by mutual consent under S.28 of the Special Marriage
Act, and Hindus to whom S.13B of the Hindu Marriage Act and Parsis to whom
S.32B of the Parsi Marriage and Divorce Act, there is no justification
constitutionally acceptable for insisting on a different longer period of
mandatory minimum separate residence so far as the Christians to whom S.10A of
the Divorce Act applies, contend counsel. The learned counsel urge that the
stipulation is unconstitutional as it offends the mandate of equality under
Art.14 of the Constitution.
14.
It is secondly contended that such stipulation of the longer period of minimum
mandatory separate residence offends the right to life guaranteed under the
Constitution. It is trite that the right to marry and right to obtain divorce
by mutual consent must be reckoned as incidents of the right to life. Right to
life can be curtailed or regulated only by procedure established by law. Such
procedure, to pass the test of constitutionality must be fair, just, reasonable
and right and should not be arbitrary, fanciful or oppressive. The stipulation
of the longer period of two years is arbitrary, fanciful and oppressive. It is
unreasonable. It offends the core constitutional value of respect to the
dignity of life. Spouses during their active period of fertility and
re-productivity will be unnecessarily and unreasonably obliged to conform to
the oppressive stipulation of living in a dead marriage for one more year. This
offends their right to life and the right to pursue happiness, it is urged. It
is contended that the stipulation of the longer period of two years under
S.10A(2) to justify a claim for divorce by mutual consent for the Christians
alone offends not only the right to equality under Art.14 of the Constitution;
but it also offends the right to life under Art.21 of the Constitution. It
places unreasonable, arbitrary and baseless fetter of the spouses to enjoy life
and pursue happiness, contend counsel.
15.
The learned counsel, in these circumstances, contends that the stipulation of
the period of two years in S.10A(2) of the Divorce Act must be held to offend
the fundamental rights guaranteed under Part III of the Constitution and
consequently that stipulation must be held to be unconstitutional. S.10A as it
now stands must be declared to be unconstitutional under Art.13 of the
Constitution. The consequent prayer is that to avoid unconstitutionality the
period of two years stipulated in S.10A(2) may be read down to a period of one
year, in tandem with the periods stipulated in S.28(1) of the Special Marriage
Act, S.13B(1) of the Hindu Marriage Act and S.32B(1) of the Parsi Marriage and
Divorce Act.
16.
This argument advanced by Sri.G. Shrikumar, amicus curiae, mainly is
endorsed by the other counsel who appeared for the parties.
17.
Sri.T.P.M. Ibrahim Khan, the learned Assistant Solicitor General of India, on
the contrary, contends that the provision is absolutely valid, correct and
constitutional. It is not vitiated by the vices against which Arts.14 and 21 of
the Constitution are safeguards. The learned ASGI resists the contention on the
following specific grounds:
18.
First of all, the learned ASGI points out that the personal laws are not 'laws'
or 'law in force' within the sweep of Art.13 of the Constitution. The learned
ASGI places reliance on the decision ofthe Division Bench of the Bombay High
Court in The State of Bombay v. Narasu Appa (AIR (39) 1952 Bom.84). The
counsel contends that this view has been accepted by the Supreme Court in Srikrishna
Singh v. Mathura Aahir & Ors. ((1981) 3 SCC 639). In these circumstances,
a piece of personal law cannot be assailed on the ground that it offends the
fundamental rights guaranteed under Part-III of the Constitution. Art.13 has no
application whatsoever in such a situation, contends the learned ASGI.
19.
Sri.G. Shrikumar, the amicus curiae, questions the correctness of the
dictum in Narasu Appa (supra). The learned counsel contends that the
view taken by the Bombay High Court in that decision has not been approved by
jurists. The learned counsel points out that Sri.H.M. Seervai in his work
"Constitutional Law of India” has opined as follows:
“There
is no difference between the expression “existing law” and “law in force” and
consequently personal law would be “existing law” and “law in force”. This
conclusion is strengthened by the consideration that custom, usage and
statutory law are so inextricably mixed up in personal law that it would be
difficult to ascertain the residue of personal law outside them; it was,
therefore, necessary to treat the whole of personal law as law in force under
Art.372 and to continue it subject to the provisions of the Constitution and
subject to the legislative power of the Legislature.”
It
is further pointed out that the learned author has finally opined as follows:
“Finally
Entry 5 List 3 Schedule VIII of the Constitution clearly recognizes personal
law as a law which Parliament and State Legislature can enact, alter or repeal.
For these reasons it is submitted that the personal law of a community is law
and is “law in force” or “existing law” within the meaning of the
Constitution.”
20.
The learned counsel further points out that many other authors, including
Chitaley on the Commentaries on the Constitution of India have made critical
reference to this aspect of the decision excluding personal laws from the sweep
of Art.13 of the Constitution.
21.
Sri. G. Shrikumar further points out that Justice V.R. Krishna Iyer as early as
in Assan Rawther v. Ammu Umma (1971 KLT 684) has disagreed with the
proposition enunciated in Narasu Appa (supra) by observing as follows in
para 23:
“In
the Bombay case, the learned Judges went to the extent of laying down that
personal law is not included in the expression “laws in force” used in
Art.13(1). With great respect, I demur to the proposition and to the reasoning
adopted in reaching this result. Personal law so-called is law by virtue of the
sanction of the sovereign behind it and is, for that very reason, enforceable
through court. Not Manu nor Muhammed but the monarch for the time makes
'personal law' enforceable. Art.13(1) gives an inclusive and not exhaustive
definition. And I respectfully venture the opinion that Hindu and Mohamedan
laws are applied in courts because of old regulations and Acts charging the
courts with the duty to administer the personal laws and not because the
ancient law-givers obligate the courts to enforce the texts. ”(emphasis supplied)
Sri.
G. Shrikumar further points out that the Supreme Court in Sarla Mudgal v.
Union of India (1995 (2) KLT 45 (SC) = AIR 1995 SC 1531) has also taken the
view that the personal law owes its existence as law not to any religion; but
to legislation and the willingness of the courts and the sovereign to enforce
such personal law. The counsel relies on the following passage in para-35 of Sarla
Mudgal (supra):
“It
would be necessary to emphasise that the respective personal laws were
permitted by the British to govern the matters relating to inheritance,
marriages etc., only under the Regulations of 1781 framed by Warren Hastings. The
Legislation - not religion - being the authority under which personal law was
permitted to operate and is continuing to operate, the same can be
superseded/ supplemented by introducing a uniform Civil Code. ”(emphasis supplied)
22.
It is also brought to our notice that a learned single Judge of Bombay High
Court in Re Smt. Amina (AIR 1992 Bom.214) has doubted the proposition
enunciated in Narasu Appa (supra) and had referred the matter to a
larger Bench. Our attempts to ascertain the result of the said reference has not
been successful. We note that the Delhi High Court had also made an effort to
trace the answer on referencce by judgment dated 6.11.1993.
23.
The learned ASGI submits that a Division Bench of this Court in Mathew &
Another v. Union of India (1999 (2) KLT 248 = 1999 (2) KLJ 824) has also
accepted the dictum in Narasu Appa (supra) and, in these circumstances,
no doubts can be entertained now about the acceptability of that dictum. The
learned ASGI further points
out
that in Shri Krishna Singh v. Mathura Ahir ((1981) 3 SCC 689) in para17
the Supreme Court has virtually endorsed the dictum in Narasu Appa
(supra) in the following words:
“In
our opinion, the learned Judge failed to appreciate that Part III of the
Constitution does not touch upon the personal laws of the parties. In
applying the personal laws of the parties, he could not introduce his own
concepts of modern times but should have enforced the law as derived from
recognised and and authoritative sources of Hindu Law, i.e., Smritis and
commentaries referred to, as interpreted in the judgments of various High
Courts, except, where such law is altered by any usage of custom or is
modified or abrogated by statute. ”(emphasis
supplied)
We
have serious doubts about the proposition that a piece of personal law -
whether statutory or precedent recognised or otherwise, will not be law or law
in force within the meaning of Art.13 of the Constitution. This would go
against the fundamental and core constitutional values as also the scheme of
Art.13 of the Constitution.
24. All laws whether pre constitutional or post
constitutional will have to pass the test of constitutionality. We find no
reason, in a secular republic, to cull out “personal law” alone and exempt the
same from the sweep of Art.13 and Part III of the Constitution. With great
respect to the eminent Judges who decided Narasu Appa (supra), we feel
that the decision requires reconsideration. A piece of personal law also binds
citizens. It is as much a piece of enforceable law notwithstanding the fact
that such principles of personal law may not be statutory law and may only have
been accepted and enforced by the sovereign and acted upon by the courts for a
long period of time. Art.13 assures the citizen that pre-constitutional or
post-constitutional laws shall not be permitted to eat into space of
fundamental rights reserved by 'we the people of India' in favour of themselves
while giving unto themselves the Constitution. In that view of the matter, we
are certainly of the opinion that the decision in Narasu Appa (supra)
which appears to have been endorsed in Mathew (supra) deserves
re-consideration. Mathew (supra) does not appear to have delved deeper
into question before endorsing Narasu Appa (supra). We are tempted to agree
with the learned single Judge who opined in Re Smt. Amina (AIR 1992 Bom.
214) that the observations of the Supreme Court in Shri Krishna Singh
(supra) extracted above cannot be reckoned as ratio. In an appropriate case, we
shall certainly want the matter to be decided by a larger Bench.
25.
Be that as it may, we are of the opinion that this question need not be
referred to a larger Bench in this case. We are not dealing with a piece of
traditional personal law pure and simple. We are dealing with a piece of
statutory law enacted by the Parliament. S.10A has been introduced into the
Divorce Act by the legislative act of Parliament. Notwithstanding the fact that
such statutory law amends the personal law, it will certainly have to satisfy
Part III of the Constitution and will hence be open to challenge under Art.13.
On this question, we find absolutely no doubt. If there be any doubt, the
decision of the Full Bench of this Court in Mary Sonia Zachariah v. Union of
India
(1995
(1) KLT 644 (F.B.)) lays to rest all such doubts. After adverting to Narasu
Appa (supra), the Full Bench has observed thus in para. 39:
“39.
Another contention of the learned Central Government Pleader was that the
impugned provisions in S.10 are codified forms of personal laws of Christians
in India founded on the teachings of Christ and his disciples. Such personal
laws may not come within the purview of Art.13 of the Constitution of India and
as such cannot be declared as ultra vires the Constitution. Learned
counsel has in this connection relied upon the decision in The State of
Bombay v. Narasu Appa Mali (AIR 1952 Bom. 84) where it has been held that
personal laws are not covered by Art.13 of the Constitution of India. We do not
find any merit in the above contention as we are in this case directly
concerned with a particular provision in an enactment passed by the Legislature
unlike in the case which came up for consideration in Narasu Appa Mali's
case. So long as the infringed provisions are part of an Act, it must pass
the test of constitutionality even if the provision is based upon religious
principles. We would accordingly repel the said contention also. ”(emphasis supplied)
26.
We do further note that the Supreme Court in Shri Krishna Singh (supra)
which decision, according to the learned ASGI, endorses and approves the dictum
in Narasu Appa (supra) has also observed that when personal law is
altered, “modified or abrogated by statute”, the same will have to
satisfy the test of Art.13. (See para 17 of Shri Krishna Singh already
extracted above).
27.
We do, in these circumstances, hold that even if the dictum in Narasu Appa
(supra) is valid and binding and has been approved by a co-equal Bench of this
Court as well as the Supreme Court, the same cannot in any way justify the
contention that S.10A of the Divorce Act is not amenable to challenge under
Art.13 of the Constitution. The said contention must, in these circumstances,
fail. We hold that S.10A of the Divorce Act shall have to stand the test of
Art.13 of the Constitution.
28.
The learned ASGI next contends that classification is inherent in legislation
and the mere fact that there has been classification of Christians as a
separate group in the matter of divorce by mutual consent to stipulate a
different period of minimum mandatory separate residence cannot be said to
offend Art.14. Relying on precedents which we find unnecessary to specifically
refer, the learned ASGI contends that the classical test as judicially
enunciated demands that two conditions must be fulfilled. They are:
(1) The classification must be founded on
an intelligible differential which distinguishes those that are grouped
together from others.
(2) The differential must have a rational
relation to the object sought to be achieved by the law under challenge.
There
can be no dispute on this proposition of law. Classification is permissible and
differential in classification can be justified only if the above two tests are
simultaneously satisfied by the piece of law under challenge. It is also well
settled that classification on the basis of religion in the matter of personal
laws is justified. These general principles are not disputed. But the learned
counsel argue that these tests are not satisfied in the instant case.
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. S.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 S.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.
31.
We have first of all got to see what is the basis of the classification? The
dominant rationale for classification, we must note is the anxiety and the yearning
of the Legislature, in response to popular demands, that the secular concept of
divorce by mutual consent must be made available and applicable to the
followers of all religions who want to take advantage of the same. They are
people who may have got their marriages solemnized in accordance with their
respective personal laws; but want such marriages to be dissolved on the ground
of mutual consent. That is the dominant principle of classification. To such
class of persons benefits have been extended by amendment and incorporation of
identical provisions in the statutory law relating to marriage. The
beneficiaries do not primarily and dominantly belong to the class of
Christians, Hindus or Parsis. They are not classified for the purpose of the
amendment on the basis of their religion at all. They belong to the class of
persons who notwithstanding the solemnization of their marriage under the
personal law and notwithstanding the absence of such provisions in their
personal law, want to claim the benefit of such dissolution of marriage by
mutual consent as is available to those who have got their marriage solemnized
under the secular law i.e., the Special Marriage Act. After having identified
such a class of persons and after having chosen to extend the benefit of
divorce by mutual consent which is totally alien to their personal law to them,
though at different points of time there is, according to us, absolutely no
justification in again classifying them on the basis of their religious and
applying the law unequally to such a homogeneous group of persons on the basis
of their religious identity. Religious identity is irrelevant to such a group
of persons who want to transcend their religious identity and claim the benefit
of the secular concept of divorce by mutual consent. The sub-classification in
such a broad group on the basis of their religion and differentiation against
them must obviously be held to be unconstitutional as the discrimination and
differentiation is unrelated to the purpose and object of classification.
32.
We do first of all look at Art.44 of the Constitution which enjoins that the
State must endeavour to secure for all its citizens a uniform Civil Code
through out the territory of India. The preamble of the Constitution declares
and stipulates that the Union of India shall be a sovereign, secular,
socialist, democratic republic. The core values of the Constitution are
declared. Secularism without any dispute is one of the basic features of the
Indian Constitution. The State cannot be secular until the polity also becomes
secular. Constitutional secularism is not denying religion as such. The core of
Constitutional secularism is the realistic understanding and acceptance that
the religions shall not transgress into domains and areas where religion is and
ought to be irrelevant.
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. S.28
of the Special Marriage Act, S.13B of the Hindu Marriage Act, S.32B of the
Parsi Marriage and Divorce Act and S.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.
34.
The learned counsel alternatively argue that the discriminating stipulation
offends the right to life guaranteed under Art.21 of the Constitution. The stipulation
obliges those to whom S.10A will be applicable to continue in dead matrimony
for a period of one year more. This obligation is not there for persons
belonging to other religions. Willing couple who want to avail the benefit of
the concept of divorce by mutual consent will have to waste one extra year
during the prime period of life only to satisfy the unreasonable statutory
stipulation of a longer period. This would offend their right to life and their
right to pursue happiness. The imposition of such an onerous condition on one
section of the populace alone is arbitrary, fanciful and oppressive. It is not
fair, just and right, contend the learned counsel.
35.
It is now well settled that right to marry and the right to secure divorce must
be reckoned as basic and essential incidents of the right to life. Right to
life cannot be controlled, regulated or denied except by procedure established
by law. This procedure cannot be arbitrary, fanciful or oppressive and must
necessarily answer the test of fairness, propriety and reasonableness. Para.56
of the decision in Maneka Gandhi v. Union of India (AIR 1978 SC 597)
appears to be relevant and crucial. It reads as follows:
“56.
In fact equality and arbitrariness are sworn enemies; one belongs to the rule
of law in a republic, while the other, to the whim and caprice of an absolute
monarch. Where an act is arbitrary, it is implicit in it that it is unequal
both according to political logic and constitutional law and is therefore
violative of Art.14”. Art.14 strikes at arbitrariness in State action and
ensures fairness and equality of treatment. The principle of reasonableness,
which legally as well as philosophically, is an essential element of equality
or non-arbitrariness pervades Art.14
like
a brooding omnipresence and the procedure contemplated by Art.21 must answer
the test of reasonableness in order to be in conformity with Art.14. It must be
“right and just and fair” and not arbitrary, fanciful or oppressive; otherwise,
it would be no procedure at all and the requirement of Art.21 would not be
satisfied”. (emphasis supplied)
36.
In this context it will be apposite to look at the rationale behind the
stipulation of a period of mandatory minimum separate residence. The law and
the system values and cherishes the institution of matrimony. The concept of
marriage being sublime is accepted by the refined polity. Though the polity and
State does not look at marriage as purely a divine sacrament it accepts
marriage to be the most fundamental and sublime of all human institutions.
Marriage is an arrangement/institution between the adult partners which has
social and societal implications. Even when the concept of divorce by mutual
consent is accepted, the system wants to ensure that a decision to dissolve
marriage by mutual consent is taken by the partners only after sufficient
forethought. The spouses must decide mutually that the marriage can be
dissolved by their mutual consent. They must be satisfied that they are not
able to live together. They must actually have been unable to live together and
such period of separate residence must be a prescribed mandatory minimum. All
this is made only to ensure that a decision to dissolve marriage is not taken
hastily and without sufficient forethought or contemplation. This anxiety of
law is reflected in S.28(2) of the Special Marriage Act, S.13B (2) of the Hindu
Marriage Act and S.10A(2) of the Divorce Act. Even after the parties take a
decision to dissolve marriage by mutual consent and file an application, they
have to live with the decision, contemplate the same, sleep over the decision
and wait for a period of six months before a court can pass any order on the
basis of such a joint application. Only if the request is repeated after the
said period of six months, can the court grant a decree for divorce by mutual
consent.
37.
We intend to note that the prescription of the period of mandatory minimum
separate residence has an objective to serve, that is to ensure the interests
of sufficient forethought and contemplation before an application is filed.
Even thereafter, the contemplation must continue. The stipulation of the period
of minimum mandatory separate residence thus serves this purpose. Considering
the purpose and the group of people to which such purpose is to apply and
operate, we find the stipulation of different periods for different religions
totally unjustified. That renders the stipulation not fair, just and right. It
renders the stipulation unreasonable, arbitrary, fanciful and oppressive. In
that view of the matter, we are satisfied that Art.21 of the Constitution is
also offended by the prescription of a separate, different and longer period of
mandatory minimum separate residence for those to whom the Divorce Act applies.
Having brought all persons belonging to all religions within a
group/classification for the purpose of extending the benefit of the concept of
divorce by mutual consent and having chosen to make that benefit available to
members of all the communities within the group, later stipulation of a
different more onerous period to one sub group alone on the basis of the
unreasonable and irrelevant basis of religion does certainly, according to us,
offend the mandate of right to life under Art.21 of the Constitution. That the
discrimination manifests itself not in one common statute but in a separate
statute applicable to the victims of discrimination is not relevant while
considering the challenge against the unconstitutional discrimination.
38.
It is argued by the learned ASGI with the help of the discussions in Parliament
that the community had demanded the stipulation of different period considering
the difference in the Christian approach to indissolubility of marriage. The
learned counsel, on the contrary, argues that having decided to extend the
concept of divorce by mutual consent to the members of the Christian community
by introduction of S.10A of the Divorce Act, there is no basis whatsoever for
the contention that they must alone wait for a longer period of minimum mandatory
separate residence. The concept of indissolubility of marriage was available in
the Indian and Christian thought and the attempt to justify prescription of a
discriminatory provision on the mere basis of “demands from the community” is
not justified, it is urged.
39.
The learned counsel further contend that even parliamentary discussions show
that this prescription was questioned and the right of the clergy who are not
married men to give authentic opinion regarding marriage on behalf of the laity
was questioned even in Parliament. We need not enter into that domain at all.
We need only note that having chosen to introduce the concept of dissolution of
marriage by mutual consent, prescription of a longer period does appear to
offend the mandate of equality undoubtedly. The attempt to justify the same on
the vague and assumed basis of demands from the community cannot be held to be
sufficient to avoid the vice of arbitrariness.
40.
With the help of the decision in Karnataka Bank Ltd., v. State of Andhra
Pradesh ((2008) 2 SCC 254) it is argued by the learned ASGI that in
pronouncing the constitutional validity of a statute the court is not concerned
with the wisdom or unwisdom, the justice or injustice of law. If that which is
passed into the law is within the scope of power conferred on a Legislature and
violates no restriction of that power the law must be upheld whatever a court
may think of it. It is further argued that the presumption of constitutionality
must apply to S.10A of the Divorce Act. The court cannot lightly assume the
same to be not fair, just and right or arbitrary, fanciful and oppressive. It
must be remembered that the wisdom of the legislative policy is not to be
questioned at all before the courts.
41.
We have no quarrel with this proposition. We are reminded by learned counsel
with the help of the decision in A.L. Karle v. The Project and Equipment
Corporation of India Ltd. (AIR1984 SC 1361) that the wisdom of legislative
policy is not open to judicial review but when the wisdom takes the concrete
form of law, the same must stand the test of being in tune with the fundamental
rights and if it trenches upon any of the fundamental rights it is void as
ordained by Art.13 of the Constitution.
42.
In the domain of policy, it is the legislative decision which will prevail. The
wisdom or un-wisdom, justice or injustice of the policy cannot be called in
question in judicial review. But when the wisdom takes the concrete form of law
the legislative provision will have to stand the test of Art.13 and if the
legislative stipulation offends any fundamental right under Part- III of the
Constitution Art.13 will come into operation and the offending provision will
have to be declared to be void.
43.
Having considered all the relevant circumstances, we are of the opinion that
the stipulation of a higher period of two years of mandatory minimum separate
residence for those to whom the Divorce Act applies, in contra-distinction to
those similarly placed to whom S.13B of the Hindu Marriage Act, S.32B of the
Parsi Marriage and Divorce Act and S.28 of the Special Marriage Act would
apply, offends the mandate of equality and right to life under Arts.14 and 21
of the Constitution.
44.
What is to be the consequent order is the next question. Applying the doctrine
of severability as has been held in D.S. Nakara v. Union of India (AIR
1983 SC 130) we are satisfied that we will be well within the power of this
Court to read down such an unconstitutional provision which is unrelated to the
object sought to be achieved The stipulation of two years can be severed and
can be read down to one year to bring it to be in conformity with the
provisions of other laws to avoid the vice of unconstitutionality.
45.
We come back to the facts of the case. The marriage was solemnized on 6.4.08.
Separate residence commenced on 21/9/08. Separate residence has been there for
a period exceeding one year on the date of application. A period of six months
has already elapsed from the date of filing of the petition. We are satisfied, in
these circumstances, that a decree for divorce can be granted as prayed for by
the petitioners under S.10A of the Divorce Act.
46. In
the result:
(a) This Writ Petition is allowed.
(b) The stipulation in S.10A(1) of the
Divorce Act that the spouses must “have been living separately for a period of two
years or more” is declared to be unconstitutional as the stipulation of the
period of “two years” therein violates the fundamental rights to equality and
the right to life under Arts.14 and 21 of the Constitution.
(c) To save the provision and to avoid the vice of
unconstitutionality the period of “two years” stipulated in S.10A of the
Divorce Act is read down to a period of “one year”.
(d) The common impugned order passed by the court
below is set aside. It is found that the petitioners are entitled to a decree
for divorce under S.10A of the Divorce Act.
(e) Invoking the powers of the Family Court under
S.10A of the Divorce Act as so read down, the marriage between the petitioner
and the second respondent solemnized on 6/4/08 is hereby dissolved under S.10A
of the Divorce Act.
