IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI THURSDAY, THE 25TH FEBRUARY 2010 / 6TH PHALGUNA 1931 WP(C).No. 20076 of 2009(R) -------------------------- OP.1313/2008 of FAMILY COURT,TRIVANDRUM .................... PETITIONER(S): ---------------------- SAUMYA ANN THOMAS, AC-18, ARTIEE COMFORT ,NALANDA ROAD, P,N.G JUNCTION, VIKAS BHAVAN, THIRUVANANTHAPURAM-33,EMPLOYED AS PROJECT ENGINEER IN THE FIRM "ZUSMA GREEN" EDAPAZHANJI THIRUVANANTHAPURAM. BY ADV. SRI.P.B.SAHASRANAMAN SRI.K.JAGADEESH SRI.T.S.HARIKUMAR RESPONDENT(S): --------------- 1. THE UNION OOF INDIA, REPRESENTED BY THE SECRETARY, DEPARTMENT OF LAW AND JUSTICE, NEW DELHI. 2. PRAVEEN THOMAS, THAZHETHIL ST. MARYS NILAYA, 18-BRINDAVAN NAGAR, 2ND MAIN, 2ND CROSS THAVEREKERA, BANGLORE-29,NOW EMPLOYED AS MANAGER, HR DIVISION, MARATHON ELECTRO MOTORS, 1-TARATALA ROAD, KOLKATTA-24. ADV. SRI.PRATHEESH.P FOR R2 SRI.S.SUDHEESHKAR FOR R2 SRI. K.SIJU FOR R2 SRI.P.A.JACOB VAIDHYAN FOR R2 SRI.P.PARAMESWARAN NAIR,ASST.SOLICITOR FOR R SRI.T.P.M.IBRAHIM KHAN,ASST.S.G OF INDI FOR ADDL.R2. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/01/2010, THE COURT ON 25/02/2010 DELIVERED THE FOLLOWING: R. BASANT & M.C. HARI RANI, JJ. ------------------------------------------------- W.P.(C) No. 20076 of 2009-R ------------------------------------------------- Dated this the 25th day of February, 2010 JUDGMENT Basant,J. Is the stipulation of a period of two years as the minimum mandatory period of separate residence in Sec.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 W.P.(C) No. 20076 of 2009 -: 2 :- 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 W.P.(C) No. 20076 of 2009 -: 3 :- under Sec.10A of the Divorce Act. They filed I.A.No.537/09 to dispense with the waiting period of six months under Sec10A(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 Sec.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 Sec.10A(1) and the period of six months stipulated under Sec.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 Sec.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 Sec.10A of the Divorce Act is liable to be granted. W.P.(C) No. 20076 of 2009 -: 4 :- 5. To appreciate this contention raised, we deem it necessary to extract Sec.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-section (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 W.P.(C) No. 20076 of 2009 -: 5 :- 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 Sec.13B of the Hindu Marriage Act, Sec.32B of the Parsi Marriage and Divorce Act and Sec.28 of the Special Marriage Act. The only difference is that instead of the period of two years mentioned in Sec.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 Sec.10A(1) and the period of six months under Sec.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 Sec.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 W.P.(C) No. 20076 of 2009 -: 6 :- 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 Sec.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 Sec.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 Sec.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 Sec.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 Sec.10A(2) can and must have been waived by the Family Court. W.P.(C) No. 20076 of 2009 -: 7 :- We have already dealt with this question in detail in M. Krishna Preetha v. Dr. Jayan Moorkkanatt & another 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 Sec.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 W.P.(C) No. 20076 of 2009 -: 8 :- 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 Sec.28 recognised the concept of W.P.(C) No. 20076 of 2009 -: 9 :- dissolution of a secular marriage by mutual consent. Long later, in 1976 the concept of divorce by mutual consent was accepted and recognised under the Hindu Marriage Act. Still later in 1988 the Parsi Marriage and Divorce Act in Sec.32B accepted and recognised the concept of divorce by mutual consent. To get the concept introduced into the Divorce Act, 1869 we had to wait for a lot more of time. In 2001, after the Courts and the Law Commission incessantly demanded the incorporation of such a provision, Sec.10A of the Divorce Act found its way into the Act. It is thus that the concept of divorce by mutual consent was accepted under the Divorce Act. 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 Sec.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 W.P.(C) No. 20076 of 2009 -: 10 :- 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 Sec.28 of the Special Marriage Act, and Hindus to whom Sec.13B of the Hindu Marriage Act and Parsis to whom Sec.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 Sec.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 W.P.(C) No. 20076 of 2009 -: 11 :- 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 Sec.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 Sec.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. Sec.10A as it now stands must be declared to be unconstitutional under Art.13 of the Constitution. The consequent prayer is that to W.P.(C) No. 20076 of 2009 -: 12 :- avoid unconstitutionality the period of two years stipulated in Sec.10A(2) may be read down to a period of one year, in tandem with the periods stipulated in Sec.28(1) of the Special Marriage Act, Sec.13B(1) of the Hindu Marriage Act and Sec.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 of the Division Bench of the Bombay High Court in The State of Bombay v. Narasu Appa (AIR (39) 1952 Bombay 84). The counsel contends that this view has been accepted by the Supreme Court in Srikrishna Singh v. Mathura Aahir & Others ((1981) 3 SCC 639). In these circumstances, a piece of personal law cannot be assailed on the ground that it offends the W.P.(C) No. 20076 of 2009 -: 13 :- 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 Article 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: W.P.(C) No. 20076 of 2009 -: 14 :- “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 Article 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 W.P.(C) No. 20076 of 2009 -: 15 :- reason, enforceable through court. Not Manu nor Muhammed but the monarch for the time makes 'personal law' enforceable. Article 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 (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 W.P.(C) No. 20076 of 2009 -: 16 :- 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 Bombay 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 reference by the larger Bench; but as stated in Kalawati v. Union of India (L.A.A.No.650/08 and CM No.9226/08 dated 27/1/09), that court was also not able to trace the outcome of the reference. We are now given to understand that the Division Bench had declined to answer the reference 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) 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 W.P.(C) No. 20076 of 2009 -: 17 :- 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 W.P.(C) No. 20076 of 2009 -: 18 :- 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