RllYNOLD RAJAMANI & ANR.

UNION OF INDIA & ANR.

July 30, 1982

[R.S. PATHAK, 0. CHINNAPPA REDDY AND

BAllARUi:. ISLAM, JJ.]

\ Indian Divorce Act 18691 Ss. 7, 10-'MutuaJ, consent' whether a ground for divorce. , ~

Interpretation of Statutes-Matrimonial statutes-Legi1/ation by lncorpora ..

D lion-Post 1947 British laws whethr incorporated into Indian lilw.

F •

The appellants, who were husband and wife belonging to thC Roman Catholic Community were married under section 27 Of the Indian Christian Marriage Act 1872. 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 th.e ground that section 28 of the Special Marriage Act could not bC aVailed of. 'The Supreme Court allowed the appellants to amend their joint petition to enable them to rely on sectio_n 7 of the Indian Divorce Act 1869 read with section l (2)(d) of the Matrimonial Causes

Ac~ 1973 of England and to seek divorce on the ground that they had been Jiving separately for more than two years and had not been. able tO live together and that the marriage had broken down irretrievably, an~ that therefore they were entitled to a decree of divorce. The District Court however dis1nissed the petition holding that theY were not.entitled to rely on section J (2)(d) Of the English Statute. Jn appeal the High Court affirmed the view taken by the trial Court.

In the appeal to ibis cour, t it was contended' on behalf of the appellants:

(1) that the trial court and the liigh Court were wrong and that section 7 of the Indian Divorce Act 1869 incorporatC"d lhe provisions of seclion 1(2)(d) 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 Paten:t jurisdiction enjoyed by the High Court in Matrimonial matters "is sufficiently extensive to enable the High Court to make 3. decree for"'Clivorce.

Dismissing the appeal,

HELD : [By the CourtJ

...

REYNOLD RAJAMANI v. UNIOJ'l (Pathak, J.) 33

Muttial consent fs not a ground for divorce under the Indian Divorce

At 1869. The provisions of section 1(2)(d) of the Matrimonial Causes.Act 1973 of England cannot be read into sedtion.7 of the Indian oivorce Act, 1869. (39 A]

[Per Pathak and Baharul lslam, JJ.j

I. Whether a provision for divorce by muttial consent should be iiicluded in the Indian Divorce Acfis a matter for legislative policy. The courts cannot ex: tend or enlarge legislative policy by adding a provision to the statute which was

never enacted there. It is for Parliament to considr whether the Indian Divofce Act, 1869 should be amended so as to include a provision for divorce by mutal consent. [38 C'D; 39 F]

I .

The Letters Patent jurisdiction enjoyed by the High Court in n1atri-

.... monial matters cannot be construed to incltide a ground for divorce not specifically set forth in section 10 of the Indian Divorce Act, '!869. [39 E]

M. Barnard v. G.H. Barnard A.LR. 1928 Cal. 657; Miss Shireen A-fall v.

John James Taylor A.LR. !952 Pb. 277: T.M. Bashiam v. M. Victor A.1.R. 1970 Mad. 12; and A. George Cornelius v. Elizabeth Dopti San1add11am A.I.R. 1970.

Mad. 240. approved.

[P<r Chinnappa Reddy and Baharul Islam, JJ.].

• Legislation whenever made bY Parliament of a forego state cannot auto- .

ma.tically becon1e part of the. law of another sovereign state.

Whatever interpre- tation of section 7 of the Indian Divorce Act, 1869 was permissible before August 15, 1947 when th~ British Parliament ha~ plenary _pOwers of legisla.Uqn over E Indian territory, no interpretation js now permissible which would incorporate post-1947 Br_itish laws into the Indian laws. [39 G-H; 40 A] -

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2631 of 1982.

Appeal by special leave from the judgment and order dated the 3rd Octoher, 1980 of ihe Del.hi High Court in C.M. (Main) No. 184 of 1980.

Miss Lily-Thomas, KS. Gill and S.K. Arora, for tlie Appellant.

_ G - '

S.T. Desai and Miss A. Subhashini t'or the Respondent. ' • .

The following Judgments were deliverd;

PATHAK J.

The appellants, who belong to Catholic commnnity, were mafrid on Deceber

the Roman 30, 1967 iq

- I

.. c

SUPREME COURT REPORTS

(1983] J S.C.R.

Podannur in the State of Tamil Nadu under s. 27 of 'the Indian Chri; tian Marriage Act, 1872. On July 26, 1979 they put in a joint petitiofi under s. 28of the. Speeial 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 s. 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 appea I to this Court. In the appeal they applied for permi>sion to amend the joint' petition to enable ihem to rely upon s. 7 of the Indian Divorce Act, 1869 read with s. I (2) (d) of the Matrimonial Causes Act, 1973 'or England. The amendment was allowed, a.nd the appellants filed an amended joint petition in the trial court seeking divorce on the ground that they had been living separately for more than two years and h.ad not been able to live together and their marriage had broken down irretrievably and therefore they were entitleil 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 s. I (2) (d) of the English statute. The appellants took the matter to the High Court of Delhi andthe l-Iigh Court has affirm'ed 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 s. 7 of the Indian Divorce Act, 1869 the provisions of s. I (2) (-OJ 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 Jeng thbut 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 Jaw 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

judmenl should be pronounced now without further delay. . '

, lit.,

REYNOLD RAJAMANI v. UNION (Pathak, J.) 35

. The main contention raised /by Miss Thomas is that the appellants are entitled to tbe benefit of s. 7 of the Indian Divorce Act and therefore, by reason of that .provision, to rely on s. I (2) (dJ of the Matrimonial Causes Act, 1973. There is no doubt that if the provisions.of s. I (2) (d) of the English statute can be read.ins. 7 of the Indian Divorce Act and the appellants can establish that the .conditions set forth in s. I (2) (d) are made out the appellants will be entitled to claim a decree of divorce.

But we are not satisfied that s. 1 (2) (d) of the English statute can be read in s. 7 of the Indian Divorce Act.

Sub-ss. (J) and (2) of s.· 1. of the Matrimonial Causes Act, 1973 pr9vides :-

 "(I) Subject to sect.ion 3 belo)V, 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 f;, r divorce shall not hold the marriage to have broken down irretrievably unless the petitiQner satisfies the court of one or more of the following facts, that is to say-:-

(a) that the respondent bas committed adultery and the petitioner finds it intolerable to live with the respontlent;

(b) that the respondent has behaved in such a way

tlrat the petitioner cannot reasonably be expected F to live with. the respondent;

(c) that the respondent has deserted tbe petitioner for a continuous perind of at least two yers immediately prec_eding the presentation of the petition;.

(c!) that.the parties to the marriage have lived apart. for a continuous period of at least two years immediately preceing the presentati9n of the petition (hereafter in this Act referred to as "two years' separation") and the respondent consynt~ to a decree being granted; ·

SUPREME COURT REPORTS [1983] 1 s.c.1<.

(e) that the parties to the mariage have lived apart for a continuous period of at least five years immediately preceding .the presentation of the peti . ti on (hereafter i;; this Act referred. to as ','five

years' separation)." ; · . \ 'D The circunistarrces set forth in subs. (2) of s. I constitute. the basis for holding that the marriage has broken down irretrievably. Can

thes~ provisions be deemed incorporated in s, 7 of the .Indian . Diorce Act ?" S. 7 provfoes :- . -/ - ,

C · "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 pri.nciples

and.rules which, 'in the opinion of the said. Courts, are as nearly as may-Oe conformable to the principles and. rules on \vhich-tbe Court for Divorce and Matrimonial Causes D 'in England for the time being acts and gives relief:

Provided that nothing in this yection shall. deprjve_ the said Courts of jurisdiction in a case where the parties tq. a marriage professed the Christian religion at die time of, the occurrence of the facts .on which the.,.claim 'to relief is

founded." .

The section requires that in all suits or proceedings undr the Indian .

Divorce Act the High 'Court and District Courts shall "act and give relief on "principles and rules" which conforin as nearly as may be to tbe principles and rules 'on which the Court for Divorce and .Matrimonial Causes of England acts and gives relief. What is contemplate(\ is the manner in which the court will exercise its jurisdic tion for the purpose of disposing of a pending suif or .. proceeding:

- The CApression ' 1princip!es and rul~"' does n<?t mean the grounds on "hich a suit or proceeding may be instituted. The grounds are ordinarily pleaded in. Jhe suit or pro<:eding when. the petitioner comes to court and invokes its jurisdiction. It is after the suit or proceeding is ente, rtaii1ed that the. question arises of decidini cln the 'norms to be applied by the court.for the purpose of disposing or.it.

If it were otherwise, plainly there would be a conflict with s:-10 of.

th~ Indian Divorce Act. Fors. 10 sets forth the limited grounds on which 'a petition may be presenled by a husband or wife for dissolu- .tion of the marriage.

, ii, I '

'~-.REYNOLD RAJAMANI V, UNiON (Pathak, J) 3?

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 ponstitutes a departure from that primary principle, and the Legislature is extremel}circumspect in setting forth the grounds on which a marriage 'may be dissolved.

The history of all matrimonial legislation will show that at t_he 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, tfiey nevertheless continue to rorm atiexception to the general principle favouring the continution of the marital tie. In our opinion, when a legislative provision specifies the grounds on wllich 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 afready specifically set forth in the legislation, that_ is the business' of the Legislature and not of the courts. It is another matter that in consiruing the language in which the grounds are incorporated the courts should give a liberal construction to it.

Indeed, we think thai the courts must gi¥e 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

extendeooy .adding new grounds not enumerated in the section.

When therefore s. IO of the Indian Divorce' Act specifically sets forth the grounds on which a marriage may be dissolved, additional grounds cannot be includd by the judicial constructi'on of some other section unless that section plainly intends so. That, to our mind, s: 7 does not. We may point out .that in M. Barnard v. G.H.

Barnard(') the Calcutta High Court repelled a similar contentin and held that s. 7 could not be construed so as to "import into Indian / Divorce Jurisprudence any fresh ground for relief other than those set fortb ln.s, JO'\ and that "the only grounds on which a marriage: may be dissolved are those set forth in s. 10 of the Act ... ". The Punjab High Court in Miss Shieen Mall v. John.James Taylor(') has also tak!'n the view that thegrounds set forth, ins._ 10 of the Iiidian

(l) AIR 1928 Cal. 657.

(2) AIR 1952 Pb, 277.

38 . SUPREME COtJRT REPORTS

(1983) I S.C.ll.c <

Divorce Act cannot be enlarged by reference to s. 7 of the Act.

So also has a Special Bench of the Madras High Court in T.M.

Bashi am v. M. Victor(') and a Single Judge of that Court in A. George Cornelius v. Elizabeth Dopti Samadanam.(')

Mhs Thomas appeals to us to adopt a policy of "social engineering" and to give to s. 7 the conte'lt which has been enacted in s. 28 of the Special Marriage Act, 1954 and s. 13B 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 marri ages 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.

Reference is inade by Miss Thomas to s. 2 (ix) of the Dissolution of Ni'uslim Marriage Act, 19~9 which empowers the 9ourt to dissolve a Muslim marriage on any ground other than those already enumerated in the section ":-vhich is recognised as valid for the dissolution of marriages under Muslim Jaw." No such provision is contained in s. JO of the Indian Divorce Act.

. Learned counsel of the appellants has referred us to B. Jswarayya v. Swarnam Iswarayya(3) and George. Swamidoss Joseph

v. Miss Harriet Sundari Edward.(') Nothing said in those -cases helps the appellants. The first case was concerned with the ques- tion whether an appellate court can increase the amount of alimony. payable by the husband to the wife without an appeal by he<. 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.

(1) A.J.R. 1970 Mad. 12.

12) A. I. R. 1970 Mad. 240;

(3) A.LR. 1931 Privy Council 234.

(4) A.J.R. 1955 Mad. 341.

REYNOLD RAIAMANI V. UNION (Chinnappa Reddy, J.) . 39

We are Qot satisfied that s. 7 of the Indian Divorce Act can be read to include the provisions of s. I (2) (d) of the 'Matrimonial • Causes Act, 1973. This contention of the appellant must fail._ ,

Learned counsel for the appellaQtS then points out that a Christian marriage can be registered under the Special Marriage

' B 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 tci 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 C 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. ·

It is also urged by the appel.)ants 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 divomi on the ground now pleaded. We have examined the matter carefully and we do not see how that jurisdiction can be construed to ii:iclude a ground which is not specifically Set forth in . s. 10 of the Indian Divorce Act.

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. The , appeaffails 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 Indian .

Divorce Act and that the provisions of s. I (2) (d) oft he British Matrimonal Causes Act, l 973 cannot be read into the Indian Divorce Act merely because of s. 7. It is unthinkable that lgislation whenever made by the Parliament of a foreign state may automati cally become part ; f the .law of anothet. sovereign State. Legislation by incorporation can never go so far. Whatever interpretation of s .. 7 was permissible before August 15, 1947 when the British Parliament

. '

40 SUPRtME COURT REPORTS

[1983] 1 S.C.I!..

bad 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, hs 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 - beiween the' sexes.

But the world is still a man's world aod 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 t.he sexes appears to be a very distant goal.

One has only to read the daily sickly repor\s of 'dowry deaths' and 'atrocities on _women' w realise that wotnen, 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 in.equality will end when social and economic inequality ends. It is, therefore, obvious that true equality b, twccn the sexes and else where is possible only when eeonomic and social inequalities disappear." Our Constitution proclaims, in the Preamble, the establishment of a socialist State where there will be justic.e, social, economic and political, as our constit_utional goal and this is reiterated in the Fundamental Rights' and Directive Principles' Chapters. But, the march towards equality and ecoomic and social justice is still a 'long march' and meanwhile, 'Yhat of divorce by mutual consent ? . Yes, I agree with Miss Lily Thomas _that divorce by mutual consent should b.e 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 p; otected. Our society still looks askance at a divorced woman. A woman divorcee is yet a suspect.

Her chances of survival are dimini, hed by the divorce. So; the law which grants the decree f-Or divorce must secure for her some measure of economic

REYNOLD RAJAMANI v. UNION (Chinnappa' Reddy, /.) 41 •

independence. H should be so whatever , be the ground for divorce, whether it is mutual conse~I; irretrievable break down of the marriage, or even the fault of the woman herself.

Every divorce solves a prol\lem and creates. another.

Both proble; ns need to be solved, no matter who" is responsible for the break down of the marriage.

If 1he divorce law is to be a real success, it should make provision for the economic idepeodence 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 interests even if she be an erring spouse, lest she become destitude and a dead loss to society.

N.V.K.

Appeal dismissed.