Case: Reynold Rajamani & Anr Vs. Union Of India & Anr

Pathak, J. (for himself and Baharul Islam, J.) 1. The appellants, who belong to the Roman Catholic community, were married on December 30, 1967 in Podannur in the State of Tamil Nadu under Section 27 of the Indian Christian Marriage Act, 1872. 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 Indian Divorce Act, 1869 read with Section 1(2)(d) of the Matrimonial Causes Act, 1973 of England. The amendment was allowed, and the appellants filed and amended joint petition in 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 1(2)(d) of the English statute. The appellants took the matter to the High Court of Delhi and the High Court has affirmed the view taken by the trial court. 2. 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 Indian Divorce Act, 1869 the provisions of Section 1(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 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 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 some time. 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. 3. The main contention raised by Miss Thomas is that the appellants are entitled to the benefit of Section 7 of the Indian Divorce Act 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 Indian Divorce Act and the appellants can establish that the conditions set forth in Section 1(2)(d) are made out the appellants will be entitled to claim a decree of divorce. But we are not satisfied that Secion 1(2)(d) of the English statute can be read in Section 7 of the Indian Divorce Act. Sub-sections (1) and (2) of Section 1 of the Matrimonial Causes Act, 1973 provides : 1. (1) 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;(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 Indian Divorce Act ? Section 7 provides : 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 Indian Divorce Act 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 and 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 pleaded 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 Indian Divorce Act. For Section 10 sets forth the limited grounds on which a petition may be presented by a husband or wife for dissolution of the marriage. 4. 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 continuation 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 a meaning which the language of the section is capable of holding. It cannot be extended by adding new grounds not enumerated in the section. 5. When therefore Section 10 of the Indian Divorce Act 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 v. G.H. Barnard (AIR 1928 Cal 657 : 32 CWN 742) 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 10 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 v. John James Taylor (AIR 1952 Punj 277) has also taken the view that the grounds set forth in Section 10 of the Indian 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 T.M. Bashiam v. M. Victor (AIR 1970 Mad 12 : 82 Mad LW 422) and a Single Judge of that Court in A. George Cornelius v. Elizabeth Dopti Samadanam (AIR 1970 Mad 240 : 83 Mad LW 63 : (1970) 2 Mad LJ 351) . 6. 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 Special Marriage Act, 1954 and Section 13-B of the Hindu Marriage Act, 1955, 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 Special Marriage Act presents a more advanced stage of development in this area than the Indian Divorce Act. However, whether a provision for divorce by mutual consent should be included in the Indian Divorce Act 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. 7. Reference is made by Miss Thomas to Section 2(ix) of the Dissolution of Muslim Marriages 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 Indian Divorce Act. 8. Learned counsel of the appellants has referred us to B. Iswarayya v. Swarnam Iswarayya (AIR 1931 PC 234 : 133 IC 716 : 58 IA 350) and George Swamidass Joseph v. Miss Harriett Sundari Edward (AIR 1955 Mad 341 : (1955) 2 Mad LJ 43 : ILR 1955 Mad 688). 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 Indian Divorce Act. 9. We are not satisfied that Section 7 of the Indian Divorce Act can be read to include the provisions of Section 1(2)(d) of the Matrimonial Causes Act, 1973. This contention of the appellants must fail. 10. Learned counsel for the appellants then points out that a Christian marriage can be registered under the Special Marriage Act, 1954 and that there is no reason why a marriage registered under the Indian Christian Marriage Act should not enjoy an advantage which is available to a marriage registered under the Special Marriage Act. 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 Special Marriage Act, 1954, inasmuch as it was solemnised in 1967 it was open to the parties to avail of that Act instead of having resort to the Indian Christian Marriage Act, 1872. In the circumstances, it is not open to the appellants to complain of the disadvantage now suffered by them. 11. 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 Section 10 of the Indian Divorce Act. 12. We are not satisfied that this appeal can succeed. It is for Parliament to consider whether the Indian Divorce Act, 1869 should be amended so as to include a provision for divorce by mutual consent.

Decision reasoning: 0[ds]In deference to Miss Thomas 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 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 some time. There has, however, been no change in the law since, and it is appropriate, we think, that judgment should be pronounced now without further delay3. The main contention raised by Miss Thomas is that the appellants are entitled to the benefit of Section 7 of the Indian Divorce Act 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 Indian Divorce Act and the appellants can establish that the conditions set forth in Section 1(2)(d) are made out the appellants will be entitled to claim a decree of divorce. But we are not satisfied that Secion 1(2)(d) of the English statute can be read in Section 7 of the Indian Divorce Act6. 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 ofthe Special Marriage Act, 1954 and Section 13-B ofthe Hindu Marriage Act, 1955, 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 Special Marriage Act presents a more advanced stage of development in this area than the Indian Divorce Act. However, whether a provision for divorce by mutual consent should be included in the Indian Divorce Act 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 there9. We are not satisfied that Section 7 of the Indian Divorce Act can be read to include the provisions of Section 1(2)(d) of the Matrimonial Causes Act, 1973. This contention of the appellants must failArticle 14 of the Constitution10. Learned counsel for the appellants then points out that a Christian marriage can be registered underthe Special Marriage Act, 1954 and that there is no reason why a marriage registered under the Indian Christian Marriage Act should not enjoy an advantage which is available to a marriage registered under the Special Marriage Act. Reliance is placed on the constitutional prohibition against discrimination embodied inArticle 14 of the. Assuming that the marriage in this case could have been registered underthe Special Marriage Act, 1954, inasmuch as it was solemnised in 1967 it was open to the parties to avail of that Act instead of having resort tothe Indian Christian Marriage Act, 1872. In the circumstances, it is not open to the appellants to complain of the disadvantage now suffered by them11. 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 Section 10 of the Indian Divorce Act12. We are not satisfied that this appeal can succeedIt is for Parliament to consider whetherthe Indian Divorce Act, 1869should be amended so as to include a provision for divorce by mutual