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

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 ofthe 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 ofthe 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.

Reasoning:
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