Civil Appeal No 2631 of 1982
Appeal by special leave from the judgment and order dated the 3rd October 1980 of the Delhi High Court in C Main No 184 of 1980
Miss Lily Thomas K section Gill and SK Arora for the Appellant
ST Desai and Miss A Subhashini for the Respondent
The following Judgments were delivered PATHAK J
The appellants who belong to the Roman Catholic community were married on December 30 1967 in 34 Podannur in the State of Tamil Nadu under section 27 of the 
On July 26 1979 they put in a joint petition under section 28 of the Special Marriage Act for a decree of divorce by mutual consent in the Court of the learned District Judge Delhi
On March 11 1980 the trial court dismissed the petition on the ground that section 28 of the Special Marriage Act could not be availed of
The appellants filed a writ petition in the High Court of Delhi which having been dismissed they proceeded in appeal to this Court
In the appeal they applied for permission to amend the joint petition to enable them to rely upon section 7 of the read with section 1 2 d of the Matrimonial Causes Act 1973 of England
The amendment was allowed and the appellants filed an amended joint petition i n the trial court seeking divorce on the ground that they had been living separately for more than two years and had not been able to live together and their marriage had broken down irretrievably and therefore they were entitled to a decree of divorce under the aforesaid provisions
On August 16 1980 the trial court dismissed the petition holding that the appellants were not entitled to rely on section I 2 d of the English statute
The appellants took the matter to the High Court or Delhi and the High Court has affirmed the view taken by the trial court
In this appeal Miss Lily Thomas appearing for the appellants contends that the trial court and the High Court are wrong and that in reading section 7 of the the provisions of section I 2 d of the Matrimonial Causes Act 1973 must be deemed to be incorporated therein and therefore the appellants are entitled to the benefit of the ground for divorce set forth in the latter enactment
In deference to Miss Thomas s vehement submissions and having regard to the importance of the question we heard her at length but we indicated that the point raised by her did not carry conviction and we reserved judgment in order to give a fully reasoned order Shortly thereafter Miss Thomas s put in an application asserting that she had information that the Government of India was proposing to amend the matrimonial law in relation to the Christian community in India and praying that in the circumstances judgment may not be delivered for sometime
There has however been no Change in the law since and it is appropriate we think that judgment should be pronounced now without further delay
35 The main contention raised by Miss Thomas is that the appellants are entitled to the benefit of section 7 of the and therefore by reason of that provision to rely on section 1 2 d of the Matrimonial Causes Act 1973
There is no doubt that if the provisions of section 1 2 d of the English statute can be read in section 7 of the and the appellants can establish that the conditions set forth in section i 2 d are made out the appellants will be entitled to claim a decree of divorce
But we are not satisfied that section I 2 d of the English statute can be read in section 7 of the Sub sections l and 2 of section I of the Matrimonial Causes Act 1973 provides I Subject to section 3 below a petition for divorce may be presented to the court by either party to a marriage on the ground that the marriage has broken down irretrievably
2 The court hearing a petition for divorce shall not hold the marriage to have broken down irretrievably unless the petitioner satisfies the court of one or more of the following facts that is to say a that the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent b that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent c that the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition d that the parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition hereafter in this Act referred to as two years  separation and the respondent consents to a decree being granted 36 e that the parties to the marriage have lived apart for a continuous period of at least five years immediately preceding the presentation of the petition hereafter in this Act referred to
as five years  separation
 The circumstances set forth in sub section
2 of section 1 constitute the basis for holding that the marriage has broken down irretrievably
Can these provisions be deemed incorporated in section 7 of the  section 7 provides 7
Subject to the provisions contained in this Act the High Courts and District Courts shall in all suits and proceedings hereunder act and give relief on principles and rules which in the opinion of the said Courts are as nearly as may be conformable to the principles and rules on which the Court for Divorce and Matrimonial Causes in England for the time being acts and gives relief Provided that nothing in this section shall deprive the said Courts of jurisdiction in a case where the parties to a marriage professed the Christian religion at the time of the occurrence of the facts on which the claim to relief is founded
 The section requires that in all suits or proceedings under the the High Court and District Courts shall act and give relief on principles and rules which conform as nearly as may be to the principles and rules on which the Court for Divorce anc Matrimonial Causes of England acts and gives relief
What is contemplated is the manner in which the court will exercise its jurisdiction for the purpose of disposing of a pending suit or proceeding The expression principles and rules does not mean the grounds on which a suit or proceeding may be instituted
The grounds are ordinarily placed in the suit or proceeding when the petitioner comes to court and invokes its jurisdiction
It is after the suit or proceeding is entertained that the question arises of deciding on the norms to be applied by the court for the purpose of disposing of it
If it were otherwise plainly there would be a conflict with section 10 of the 
For section 10 sets fourth the limited grounds on which a petition may be presented by a husband or wife for dissolution of the marriage
37 It cannot be denied that society is generally interested in maintaining the marriage bond and preserving the matrimonial state with a view to protecting societal stability the family home and the proper growth and happiness of children of the marriage
Legislation for the purpose of dissolving the marriage constitutes a departure from that primary principle and the Legislature is extremely circumspect in setting forth the grounds on which a marriage may be dissolved
The history of all matrimonial legislation will show that at the outset conservative attitudes influenced the grounds on which separation or divorce could be granted
Over the decades a more liberal attitude has been adopted fostered by a recognition of the need for the individual happiness of the adult parties directly involved
But although the grounds for divorce have been liberalised they nevertheless continue to form an exception to the general principle favouring the continution of the marital tie
In our opinion when a legislative provision specifies the grounds on which divorce may be granted they constitute the only conditions on which the court has jurisdiction to grant divorce
If grounds need to be added to those already specifically set forth in the legislation that is the business of the Legislature and not of the courts
It is another matter that in construing the language in which the grounds are incorporated the courts should give a liberal construction to it
Indeed we think that the courts must give the fullest amplitude of meaning to such a provision
But it must be meaning which the language of the section is capable of holding
It cannot  be extended by adding new grounds not enumerated in the section
When therefore section 10 of the specifically sets forth the grounds on which a marriage may be dissolved additional grounds cannot be included by the judicial construction of some other section unless that section plainly intends so
That to our mind section 7 does not
We may point out that in M Barnard vs GH Barnardl the Calcutta High Court repelled a similar contention and held that section 7 could not be construed so as to import into Indian Divorce Jurisprudence any fresh ground for relief other than those set forth in section I and that the only grounds on which a marriage may be dissolved are those set forth in section 10 of the Act 
The Punjab High Court in Miss Shireen Mall vs John James Taylor2 has also taken the view that the grounds set forth in section 10 of the Indian l AIR 1928 Cal
2 AIR 38 Divorce Act cannot be enlarged by reference to section 7 of the Act
So also has a Special Bench of the Madras High Court in TM Bashiam vs Victorl and a Single Judge of that Court in A George Cornelius vs Elizabeth Dopti Samadanam2 Miss Thomas appeals to us to adopt a policy of social engineering and to give to section 7 the content which has been enacted in section 28 of the and section 13B of the  both of which provide for divorce by mutual consent
It is possible to say that the law relating to Hindu marriages and to marriages governed by the presents a more advanced stage of development in this area than the 
However whether a provision for divorce by mutual consent should be included in the is a matter of legislative policy
The courts cannot extend or enlarge legislative policy by adding a provision to the statute which was never enacted there
Reference is made by Miss Thomas to section 2 ix of the Dissolution of Muslim Marriage Act 1939 which empowers the court to dissolve a Muslim marriage on any ground other than those already enumerated in the section which is recognised as valid for the dissolution of marriages under Muslim law   No such provision is contained in section 10 of the 
Learned counsel of the appellants has referred us to B Iswarayya vs Swarnam Iswarayya3 and George Swamidoss Joseph vs Miss Harriet Sundari Edward4 Nothing said in those cases helps the appellants
The first case was concerned with the question whether an appellate court can increase the amount of alimony payable by the husband to the wife without an appeal by her
And the second deals with the question whether the Indian Courts can make a decree nisi for nullity absolute within a shorter period than that specifically mentioned in the 
1 Al
R 2 Al
R 3 AIR 1931 Privy Council 234
4 Al
R 39 We are not satisfied that section 7 of the can be read to include the provisions of section I 2 d of the Matrimonial Causes Act 1973
This contention of the appellant must fail
Learned counsel for the appellants then points out that a Christian marriage can be registered under the and that there is no reason why a marriage registered under the should not enjoy an advantage which is available to a marriage registered under the 
Reliance is placed on the constitutional prohibition against discrimination embodied in Article 14 of the Constitution
Assuming that the marriage in this case could have been registered under the  inasmuch as it was solemnised in 1967 it was open to the parties to avail of that Act instead of having resort to the 
In the circumstances it is not open to the appellants to com plain of the disadvantage now suffered by them
It is also urged by the appellants that the Letters Patent jurisdiction enjoyed by the High Court in matrimonial matters is sufficiently extensive to enable the High Court to make a decree for divorce on the ground now pleaded
We have examined the matter carefully and we do not see how that jurisdiction can be construed to include a ground which is not specifically set forth in E section 10 of the 
We are not satisfied that this appeal can succeed
It is for Parliament to consider whether the should be amended so as to include a provision for divorce by mutual con sent
The appeal fails and is dismissed but in the circumstances there is no order as to costs
CHINNAPPA REDDY J
I agree with my brother Pathak J that mutual consent  is not a ground for divorce under the and that the provisions of section 12d of the British Matrimonal Causes Act 1973 cannot be read into the merely because of section 7
lt is unthinkable that legislation whenever made by the Parliament of a foreign state may automatically become part of the law of another sovereign State
Legislation by incorporation can never go so far
Whatever interpretation of section 7 was permissible before August 15
1947 when the British Parliament 40 had plenary powers of legislation over Indian territory no interpretation is now permissible which would incorporate post 1947 British laws into Indian law
My brother Pathak J has pointed out that the history of matrimonial legislation has been towards liberalisation of the grounds for divorce
Inevitably so
The history of matrimony itself in the recent past has been a movement from ritual and sacrament to reality and contract even as the history of the relationship of the sexes has been from male dominance to equality between the sexes
But the world is still a man s world and the laws are man made laws very much so
We have just heard that in an advanced country like the United States of America the Equal Rights for Women Amendment could not be successfully pushed through for failure to obtain the support of the necessary number of States
Our constitution makers and our Parliament have certainly done better
We have constitutional and legal equality for the sexes
But even so economic and social equality between the sexes appears to be a very distant goal
One has only to read the daily sickly reports of dowry deaths  and atrocities on women  to realise that women in our country are yet treated as commodities and play things
The root cause of the inequality between the sexes like other class inequalities is their social and economic inequality
All inequality will end when social and economic inequality ends
It isl therefore obvious that true equality between the sexes and else where is possible only when economic and social inequalities disappear
Our Constitution proclaims in the Preamble the establishment of a socialist State where there will be justice social economic and political as our constitutional goal and this is reiterated in the Fundamental Rights  and Directive Principles  Chapters
But the march towards equality  and economic and social justice is still a long march  and meanwhile what of divorce by mutual consent  Yes I agree with Miss Lily Thomas that divorce by mutual consent should be available to every married couple whatever religion they may profess and however they were married
Let no law compel the union of man and woman who have agreed on separation
If they desire to be two why should the law insist that they be one  But I have a qualification The woman must be protected
Our society still looks askance at a divorced woman
A woman divorcee is yet a suspect
Her chances of survival are diminished by the divorce
So the law which grants the decree for divorce must secure for her some measure of economic 41 independence
It should be so whatever be the ground for divorce A whether it is mutual consent irretrievable break down of the marriage or even the fault of the woman herself
Every divorce solves a problem and creates another
Both problems need to be solved no matter who is responsible for the break down of the marriage
If the divorce law is to be a real success it should make provision for the economic independence of the female spouse
After all Indian society today is so constituted that a Woman is generally helpless and her position become worse if she is divorced
It is necessary that the law should protect her interest
 even if she be an erring spouse lest she become destitute and a dead loss to society
NVK Appeal dismissed


Summary:
The appellants who were husband and wife belonging to the Roman Catholic Community were married under section 27 of the 
They filed a joint petition under Section 28 of the Special Marriage Act for a decree of divorce by mutual consent in the District Court
The trial court dismissed the petition on the ground that section 28 of the Special Marriage Act could not be availed of
The Supreme Court allowed the appellants to amend their joint petition to enable them to rely on section 7 of the read with section 1 2d of the Matrimonial Causes Act 1973 of England and to seek divorce on the ground that they had been living separately for more than two years and had not been able to live together and that the marriage had broken down irretrievably and that therefore they were entitled to a decree of divorce
The District Court however dismissed the petition holding that they were not entitled to rely on section 1 2d of the English Statute
In appeal the High Court affirmed the view taken by the trial Court
In the appeal to this court it was contended on behalf of the appellants 1 that the trial court and the High Court were wrong and that section 7 of the incorporated the provisions of section 12d of the Matrimonial Causes Act 1973 and that the appellants were entitled to the benefit of the ground for divorce as set forth in the latter enactment and 2 that the Letters Patent jurisdiction enjoyed by the High Court in Matrimonial matters is sufficiently extensive to enable the High Court to make a decree for divorce
Dismissing the appeal  HELD By the Court 33 Mutual consent is not a ground for divorce under the 
The provisions of section l2d of the Matrimonial Causes Act 1973 of England cannot be read into section 7 of the 
39 A Per Pathak and Baharul Islam JJ 1
Whether a provision for divorce by mutual consent should be included in the is a matter for legislative policy
The courts cannot extend or enlarge legislative policy by adding a provision to the statute which was never enacted there
It is for Parliament to consider whether the should be amended so as to include a provision for divorce by mutual consent
38 C D 39 F 2
The Letters Patent jurisdiction enjoyed by the High Court in matrimonial matters cannot be construed to include a ground for divorce not specifically set forth in section 10 of the 
39 E M Barnard vs GH Barnard AIR 1928 Cal 657 Miss Shireen Mall vs John James Taylor AIR TM Bashiam vs M Victor AIR 1970 Mad 12 aad A George Cornelius vs Elizabeth Dopti Samadanam Al
R 1970 Mad
approved
Per Chinnappa Reddy and Baharul Islam JJ Legislation whenever made by Parliament of a foreign state cannot automatically become part of the law of another sovereign state
Whatever interpretation of section 7 of the was permissible before August 15 1947 when the British Parliament had plenary powers of legislation over Indian territory no interpretation is now permissible which would incorporate post 1947 British laws into the Indian laws
39 G H 40 A