Special Leave Petition Civil No 2047 of 1985
From the Judgment and Order dated 2921984 of the Delhi High Court in FAO OS No 28 of 1982
Mohinder Narian SS Jauhar and Ms Zubeda Begum for the Petitioner
The Order of the Court was delivered by CHINNAPPA REDDY J
It was just the other day that a Constitution Bench of this Court had to emphasise the urgency of infusing life into article 44 of the Constitution which provides that The State shall endeavour to secure for the citizens a uniform civil code through out the territory of India
 The present case is yet another which focuses attention on the immediate and compulsive need for a uniform civil code
The totally unsatisfactory state of affairs consequent on the lack of a uniform civil code is exposed by the facts of the present case
Before mentioning the facts of the case we might as well refer to the observations of Chandrachud CJ in the recent case decided by the Constitution Bench Mohd Ahmed Khan vs Shah Bano Begum  Ors 706 There is no evidence of any official activity for framing a common civil code for the country 
A common Civil Code will help the case of national integration by removing disparate loyalties to laws which have conflicting ideologies
No community is likely to bell the cat by making gratuitous concessions on this issue
It is the State which is charged with the duty of securing a uniform civil code for the citizens of the country and unquestionably it has the legislative competence to do so
A counsel in the case whispered somewhat audibly that legislative competence is one thing the political courage to use that competence is quite another
We understand the difficulties involved in bringing persons of different faiths and persuasions on a common platform
But a beginning has to be made if the Constitution is to have any meaning
Inevitably the role of the reformer has to be assumed by the courts because it is beyond the endurance of sensitive minds to allow injustice to be suffered when it is so palpable
But piecemeal attempts of courts to bridge the gap between personal laws cannot take the place of a common civil code
Justice to all is a far more satisfactory way of dispensing justice from case to case
 The facts of the case are somewhat novel and peculiar
The wife who is the petitioner before us claims to belong to the Khasi Tribe  of Meghalaya who was born and brought up as a Presbytarian Christian at Shilong
She is now a member of the Indian Foreign Service
The husband is a Sikh
They were married under the Indian Christen Marriage Act 1872
The marriage was performed on October 14 1975
The present petition for declaration of nullity of marriage or judicial separation was filed in 1980 under sections 18 19 and 20 of the 
The prayer for declaration no nullity of marriage was rejected by a learned single judge of the High Court but a decree for judicial separation was granted on the ground of cruelty
On appeal a Division Bench of the High Court affirmed the judgment of the learned single judge
The wife has filed this petition for special leave to appeal against the judgment of the High Court
She seeks a declaration of nullity of marriage
The ground on which the declaration was sought in the courts below and the ground on which it is now sought is the impotence of the husband in that though the husband is of achieving 707 erection and penetration he ejaculates prematurely before the wife has an orgasm leaving the wife totally unsatisfied and frustrated
At this stage we are not concerned with the question how far the wife has been able to establish her case
The real problem now is that the marriage appears to have broken down irretrievably
Yet if the findings of the High Court stand there is no way out for the couple they will continue to be tied to each other since neither mutual consent nor irretrievable break down of marriage is a ground for divorce under the 
Section 10 the prescribes the grounds on which a husband or wife may petition for dissolution of marriage
The ground on which a husband may obtain a decree for dissolution of marriage is the adultery of the wife
The grounds on which a wife may obtain a decree for dissolution of marriage are change of religion from Christianity to another religion and marriage with another woman incestuous adultery bigamy with adultery marriage with another woman with adultery rape sodomy or bestiality adultery coupled with cruelty adultery coupled with desertion for more than two years
It must be noted that the applies only to cases where the petitioner or respondent professes the Christian religion
Section 19 provides that a marriage may be declared null and void on the ground 1 that the respondent was impotent at the time of the institution of the suit 2 that the parties are within the prohibited degrees of consanguinity whether natural or legal or affinity 3 that either party was a lunatic or idiot at the time of the marriage 4 that the former husband or wife of either party was living at the time of the marriage and the marriage with such former husband or wife was then in fore
 Section 22 provides for judicial aspersion at the instance of either husband or wife on the ground of adultery cruelty or desertions for two years or upwards
The provisions of the Divorce Act may now be compared with the provisions of other enactments and laws which provide for 708 decrees of nullity of marriage divorce and judicial separation
Under the  sec 10 provides for judicial separation
It enables either party to a marriage to seek judicial separation on any of the grounds specified in sec
131 and in the case of a wife also on any of the grounds specified in sub sec
2 of sec
Section 11 provides for a declaration that a marriage is a nullity if it contravene as any one of the conditions specified in clauses i iv and v of sec
i requires that neither party has a spouse living at the time of the marriage
5 iv requires that the parties are not within the degrees of prohibited relationship unless the custom or usage governing each of them permits of a marriage between the two
5v requires that the parties are not sapindas of each other unless the custom or usage governing each of them permits of a marriage between the two
Section 12 further provides that a marriage is voidable and may be annulled if a a marriage has not been consummated owing to the impotence of the respondent or b a marriage is in contravention of the conditions specified in sec
5ii marriage without valid consent or c the consent of the guardian where required under sec
5 was obtained by force or fraud or d the respondent was at the time of the marriage was pregnant by some person other than the petitioner
Section 131 enumerates the grounds for the dissolution of a marriage on the petition of a husband or wife
It provides that a marriage may be dissolved by a decree of divorce if the other party i has after the solemnization of the marriage had voluntary sexual intercourse with any person other than his or her spouse or i ahas after the solemnization of the marriage treated the petitioner with cruelty or i bhas deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition or ii has ceased to be Hindu by conversion to another religion or iiihas been incurably of unsound mind or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that 709 the petitioner cannot reasonably be expected to live with the respondent
EXPLANATION omitted for the present purpose iv has been suffering from a virulent end incurable form of leprosy or v has been suffering from venereal disease in a communicable form or vi has renounced the world by entering any religious order or viihas not been heard of as being alive for a period of seven years or more by these persons who would naturally have heard of it had that party been alive EXPLANATION omitted for the present purpose Section 13 1 A provides i that there has been no resumption of cohabitation as between the parties to the marriage for a period of one year or upwards after passing of a decree for judicial separation in a proceeding to which they were parties or ii that there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or upwards after the passing of the decree for restitution of conjugal rights in a proceeding to which they were parties
 Section 13 2 provides 2 A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground 710 i in the case of any marriage solemnized before the commencement of this Act that the husband had married again before such commencement or that any other wife of the husband married before such commencement was alive at the time of the solemnization of the marriage of the petitioner or Provided that in either case the other wife is alive at the time of presentation of the petition or ii that the husband has since the solemnization of the marriage been guilty of rape sodomy or bestiality or iiithat in a suit under section 18 of the  or in a proceeding under section 125 of the Code of Criminal Procedure 1973 or under the corresponding section 488 of the Code of Criminal Procedure 1898 a decree or order as the case may be has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order cohabitation between the parties has not been resumed for one year or upwards or iv that her marriage whether consummated or not was solemnized before she attained the age of fifteen years and she has repudiated the marriage after attaining that age but before attaining the age of eighteen years
 Section 13 A provides that on a petition for dissolution of marriage by a decree of divorce except in so far as the petition is founded on the grounds mentioned in sec
13 i ii vi and vii the court may if it considers it just so to do having regard to the circumstances of the case pass a decree for judicial separation
Section 13 B further provides that a petition for dissolution of marriage by a decree of divorce may be presented to the court by both the parties to the marriage together on the ground that they have been living separately for a period of one year or more that they have not been able to live together and that they have mutually agreed that the marriage 711 should be dissolved
If the provisions of the are compared with the provisions of the  it will be seen that apart from the total lack of uniformity of grounds on which decrees of nullity of marriage divorce or judicial separation may be obtained under the two Acts the contains a special provision for a joint application by the husband and wife for the grant of a decree of divorce by mutual consent whereas the contains no similar provision
Another very important difference between the two Acts is that under the  a decree for judicial separation may be followed by a decree for the dissolution of marriage on the lapse of one year or upwards from the date of the passing of a decree for judicial if meanwhile there has been no resumption of cohabitation
There is no corresponding provision under the and a person obtaining a decree for judicial separation will have to remain content with that decree and cannot seek to follow it up with a decree of divorce after the lapse of any period of time
We may also notice that irretrievable break down of marriage is yet no ground for dissolution of marriage under the also though the principle appears to have been recognised in sec
13 1 A and sec
13B
We may now have a look at the provisions of the which applies only to marriages solemnized under that Act
23 of the Act enables the husband or the wife to present a petition for judicial separation a on any of the grounds specified in sub section 1 and sub section 1 A of section 27 on which a petition for divorce might have been presented or b on the ground of failure to comply with a decree for restitution of conjugal rights
Section 24 declares that a marriage may be declared nullity if i any of the conditions specified in clauses a b c and d of section 4 has not been fulfilled or ii the respondent was impotent at the time of the marriage and at the time of the institution of the suit
We may notice here that sec
4 clauses a b c d and e provide that neither party has been subject to recurrent attacks of insanity or epilepsy that the male has completed 21 years of age and the female 18 years of age and that the parties are not within the degrees of prohibited marriage
Section 25 declares that a marriage shall voidable and may be annulled by a decree of nullity if i the marriage has not been consummated owing to the 712 wilful refusal of the respondent to consummate the marriage or ii the respondent was at the time of the marriage pregnant by some person other than the petitioner or iiithe consent of either party to the marriage was obtained by coercion or fraud as defined in the  The provisos have been omitted as they are not necessary for the purposes of this case Section 27 enables either the husband or the wife to seek a decree of divorce on the ground that the respondent a has after the solemnization of the marriage had voluntary sexual intercourse with any person other than his or her spouse or b has since the solemnization of the marriage treated the petitioner with two years immediately preceding the presentation of the petition or c is undergoing a sentence of imprisonment for seven years or more for an offence as defined in the Indian Penal Code d has since the solemnization of the marriage treated the petitioner with cruelty or e has been incurably of unsound mind or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent
Explanation omitted as it is not necessary f has been suffering from venereal disease in a communicable form or 713 g has been suffering from leprosy the disease not having been contracted from the petitioner or h has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of the respondent if the respondent has been alive Explanation omitted as it is not necessary Section 27 1A enables a wife to present a petition for divorce on the ground that her husband has since the marriage been guilty of rape sodomy or bestiality or that an order for maintenance has been made against the husband and that cohabitation has not been resumed for one year or upwards after the making of the order
27 2 further provides that a decree for divorce may be presented on the ground that there has been no resumption of cohabitation as between the parties to the marriage for a period of one year or upwards after the passing of a decree for judicial separation
28 provides for the passing of a decree of divorce on the presentation of a petition by both the parties together on the ground that they have been living separately for a period of one year or more that they have not been able to live together and that they have actually agreed that the marriage should be dissolved
It will be seen that the like the contains provisions for a decree for judicial separation being followed up by a decree of divorce if there has been no resumption of cohabitation for a year or more and also for a decree of divorce by mutual consent
Here again it will be seen that the principle of irretrievable break down of marriage seems to be accepted on principle but is not specifically made a ground of divorce
Under the  section 30 provides that a marriage may be declared to be null and void if consummation of a marriage is from natural causes impossible
31 provides for the dissolation of a marriage if a husband or wife has continuously been absent for a period of seven years and has not been heard of as being alive within that time
Sec32 provides grounds for divorce a that the marriage has not been consummated within one year after its solemnization owing to the wilful refusal of the defendant to consummate it 714 b that the defendant at the time of the marriage was of unsound mind and has been habitually so up to the date of the suit Proviso has been omitted c that the defendant was at the time of marriage pregnant by some person other than the plaintiff Proviso has been omitted d that the defendant has since the marriage committed adultery or fornication or bigamy or rape or an unnatural offence Proviso has been omitted e that the defendant has since the marriage voluntarily caused grievous hurt to the plaintiff or has infected the plaintiff with venereal disease or where the defendant is the husband has compelled the wife to submit herself to prostitution The proviso has been omitted f that the defendant is undergoing a sentence of imprisonment for seven years or more for an offence as defined in the Indian Penal Code The proviso has been omitted g that the defendant the deserted the plaintiff for at least three years h that a decree or order for judicial separation has been passed against the defendant or an order has been passed against the defendant by a Magistrate awarding separate maintenance to the plaintiff and the parties have not had marital intercourse for three years or more since such decree or order i that the defendant has failed to comply with a decree for restitution of conjugal rights for a year or more and 715 j that the defendant has ceased to be a Parsi Proviso has been omitted Section 34 provides for judicial separation on any of the grounds on which divorce could be sought or on the ground that the defendant has been guilty of such cruelty to him or her or to her children or has used such personal violence or has behaved in such a way as to render it in the judgment of the court improper to compel him or her to live with the defendant
It will be noticed here that under the also mutual consent and irretrievable break down of marriage are not grounds of divorce though a decree for judicial separation may be followed by a decree of divorce if the parties have not had marital intercourse for three years or more since such decree or order
Under the Mohammedan Law a Muslim husband may divorce his wife by the pronouncement of talaq
A Muslim wife may after the passing of the dissolution of Muslim Marriages Act 1939 obtain a decree for a dissolution of a marriage on one of the following grounds i that the whereabouts of the husband have not been known for a period of four years ii that the husband has neglected or has failed to provide for her maintenance for a period of two years iiithat the husband has been sentenced to imprisonment for a period of seven years or upwards iv that the husband has failed to perform without reasonable cause his martial obligations for a period of three years v that the husband was impotent at the time of the marriage and continues to be so vi that the husband has been insane for a period of two years or is suffering from leprosy or a virulent venereal disease viithat she having been given in marriage by her father 716 or other guardian before she attained the age of fifteen years repudiated the marriage before attaining the age of eighteen years Proviso has been omitted as it is not necessary viiithat the husband treats her with cruelty that is to say a habitually assaults her or makes her life miserable by cruelty of conduct even if such conduct does not amount to physical ill treatment or b associates with women of evil repute or leads an infamous life or c attempts to force her to lead an immoral life or d disposes of her property or prevents her exercising her legal rights over it or e obstructs her in the observance of her religious profession or practice or f if he has more wives than one does not treat her equitably in accordance with the injunctions of the Qoran ix on any other ground which is recognised as valid for the dissolution of marriages under Muslim Law The proviso has been omitted as it is not necessary in the present case
We may add that under strict Hanafi Law there was no provision enabling a Muslim women to obtain a decree dissolving her marriage on the failure of the husband to maintain her or on his deserting her or maltreating her and it was the absence of such a provision entailing inspeakable misery in innumerable Muslim women  that was responsible for the dissolution of the Muslims Marriages Act 1939
See Statements of Objects and Reasons of that Act
If the legislature could so alter the Hanafi Law we fail to understand the hallabalcoo about the recent judgment of this court in the case of 717 Mohd Ahmed Khan vs Shah Bano Begum  Ors
interpreting the provisions of sec
125 of the Criminal Procedure Code and the Muslim Law
it is also necessary to add that Mohammedan Law provides for a decree for divorce known as Khula and mubara  at by agreement of parties
It is thus seen that the law relating to judicial separation divorce and nullity of marriage is far far from uniform
Surely the time has now come for a complete reform of the law of marriage and make a uniform law applicable to all people irrespective of religion or caste
It appears to be necessary to introduce irretrievable break down of marriage and mutual consent as grounds of divorce in all cases
The case before us is an illustration of a case where the parties are bound together by a marital tie which is better untied
There is no point or purpose to be served by the continuance of a marriage which has so completely and signally broken down
We suggest that the time has come for the intervention of the legislature in these matters to provide for a uniform code of marriage and divorce and to provide by law for a way out of the unhappy situations in which couples like the present have find themselves in
We direct that a copy of this order may be forwarded to the Ministry of Law and Justice for such action as they may deem fit to take
In the meanwhile let notice go to the respondents


Summary:
The petitioner belonged to the Khasi Tribe  of Maghalaya and was born and brought up as a Presbytarian Christian
She is now a member of the Indian Foreign Service
The respondent husband is a Sikh
They were married under the 
The petitioner filed a petition in 1980 for declaration of nullity of marriage or judicial separation under sections 18 19 and 22 of the  on the ground of the impotence of her husband
A Single Judge of the High Court rejected the prayer for declaration of nullity of marriage but granted a decree for judicial separation on the ground of cruelty
Division Bench affirmed the decision of the Single Judge on appeal
In the special leave petition filed by wife  HELD 1 A comparison of the relevant provisions of the Christian Marriage Act 1872    Dissolution of Muslim Marriage Act 1939 show that the law relating to judicial separation divorce and nullity of marriage is far far from uniform
717 B 2 Under the  a decree for the judicial separation may be followed by a decree for the dissolution of marriage on the lapse of 705 one year or upwards from date of the passing of a decree for judicial separation if meanwhile there has been no resumption of cohabitation
There is no corresponding provision under the and a person obtaining a decree for judicial separation will have to remain content with that decree and cannot seek to follow it up with a decree of divorce after the lapse of any period of time
711 B C 3 In the instant case the marriage appears to have broken down irretrievably
If the findings of the High Court stand there is no way out for the couple
They will continue to be tied to each other since neither mutual consent nor irretrievably break down of marriage is a ground for divorce under the 
There is no point or purpose to be served by the continuance of a marriage which has so completely and signally broken down
The parties are bound together by a marital tie which is better untied
717 B C 4 Time has now come for the intervention of the legislature to provide for a uniform code of marriage and divorce as envisaged by Article 44 and to provide by law for a way out of the unhappy situations in which couples find themselves in
It is necessary to introduce irretrievably break down of marriage and mutual consent as grounds of divorce in all cases
717 C D