Judgment Case ID: 5030

Judgment:
Special Leave Petition (Civil) No. 2047 of 1985. From the Judgment and Order dated 29.2.1984 of the Delhi High Court in F.A.O. (O.S.) No. 28 of 1982. Mohinder Narian	 S.S. Jauhar and Ms. Zubeda Begum for the Petitioner. The Order of the Court was delivered by CHINNAPPA REDDY	 J. It was just the other day that a Constitution Bench of this Court had to emphasise the urgency of infusing life into article 44 of the Constitution which provides that "The State shall endeavour to secure for the citizens a uniform civil code through out the territory of India. " The present case is yet another which focuses attention on the immediate and compulsive need for a uniform civil code. The totally unsatisfactory state of affairs consequent on the lack of a uniform civil code is exposed by the facts of the present case. Before mentioning the facts of the case	 we might as well refer to the observations of Chandrachud	 C.J.	 in the recent case decided by the Constitution Bench (Mohd Ahmed Khan vs Shah Bano Begum & Ors.) 706 "There is no evidence of any official activity for framing a common civil code for the country . A common Civil Code will help the case of national integration by removing disparate loyalties to laws which have conflicting ideologies. No community is likely to bell the cat by making gratuitous concessions on this issue. It is the State which is charged with the duty of securing a uniform civil code for the citizens of the country and	 unquestionably	 it has the legislative competence to do so. A counsel in the case whispered	 somewhat audibly	 that legislative competence is one thing	 the political courage to use that competence is quite another. We understand the difficulties involved in bringing persons of different faiths and persuasions on a common platform. But	 a beginning has to be made if the Constitution is to have any meaning. Inevitably	 the role of the reformer has to be assumed by the courts because	 it is beyond the endurance of sensitive minds to allow injustice to be suffered when it is so palpable. But piecemeal attempts of courts to bridge the gap between personal laws cannot take the place of a common civil code. Justice to all is a far more satisfactory way of dispensing justice from case to case. " The facts of the case are somewhat novel and peculiar. The wife	 who is the petitioner before us claims to belong to the 'Khasi Tribe ' of Meghalaya	 who was born and brought up as a Presbytarian Christian at Shilong. She is now a member of the Indian Foreign Service. The husband is a Sikh. They were married under the Indian Christen Marriage Act	 1872. The marriage was performed on October 14	 1975. The present petition for declaration of nullity of marriage or judicial separation was filed in 1980 under sections 18	 19 and 20 of the . The prayer for declaration no nullity of marriage was rejected by a learned single judge of the High Court	 but a decree for judicial separation was granted on the ground of cruelty. On appeal	 a Division Bench of the High Court affirmed the judgment of the learned single judge. The wife has filed this petition for special leave to appeal against the judgment of the High Court. She seeks a declaration of nullity of marriage. The ground on which the declaration was sought in the courts below and the ground on which it is now sought is the impotence of the husband in that though the husband is of achieving 707 erection and penetration	 he ejaculates prematurely before the wife has an orgasm	 leaving the wife totally unsatisfied and frustrated. At this stage	 we are not concerned with the question how far the wife has been able to establish her case. The real problem now is that the marriage appears to have broken down irretrievably. Yet if the findings of the High Court stand	 there is no way out for the couple	 they will continue to be tied to each other since neither mutual consent nor irretrievable break down of marriage is a ground for divorce	 under the . Section 10 the prescribes the grounds on which a husband or wife may petition for dissolution of marriage. The ground on which a husband may obtain a decree for dissolution of marriage is the adultery of the wife. The grounds on which a wife may obtain a decree for dissolution of marriage are change of religion from Christianity to another religion and marriage with another woman	 incestuous adultery	 bigamy with adultery	 marriage with another woman with adultery	 rape	 sodomy or bestiality	 adultery coupled with cruelty	 adultery coupled with desertion for more than two years. It must be noted that the applies only to cases where the petitioner or respondent professes the Christian religion. Section 19 provides that a marriage may be declared null and void on the ground "(1) that the respondent was impotent at the time of the institution of the suit; (2) that the parties are within the prohibited degrees of consanguinity (whether natural or legal) or affinity; (3) that either party was a lunatic or idiot at the time of the marriage; (4) that the former husband or wife of either party was living at the time of the marriage and the marriage with such former husband or wife was then in fore. " Section 22 provides for judicial aspersion at the instance of either husband or wife on the ground of adultery	 cruelty or desertions for two years or upwards. The provisions of the Divorce Act may now be compared with the provisions of other enactments and laws which provide for 708 decrees of nullity of marriage	 divorce and judicial separation. Under the 	 sec. 10 provides for judicial separation. It enables either party to a marriage to seek judicial separation on any of the grounds specified in sec. 13(1) and in the case of a wife also on any of the grounds specified in sub sec. 2 of sec. Section 11 provides for a declaration that a marriage is a nullity if it contravene as any one of the conditions specified in clauses (i)	 (iv) and (v) of sec. (i) requires that neither party has a spouse living at the time of the marriage. 5 (iv) requires that the parties are not within the degrees of prohibited relationship	 unless the custom or usage governing each of them permits of a marriage between the two. 5(v) requires that the parties are not sapindas of each other	 unless the custom or usage governing each of them permits of a marriage between the two. Section 12 further provides that a marriage is voidable and may be annulled if (a) a marriage has not been consummated owing to the impotence of the respondent; or (b) a marriage is in contravention of the conditions specified in sec. 5(ii) (marriage without valid consent); or (c) the consent of the guardian	 where required	 under sec. 5 was obtained by force or fraud; or (d) the respondent was	 at the time of the marriage was pregnant by some person other than the petitioner. Section 13(1) enumerates the grounds for the dissolution of a marriage on the petition of a husband or wife. It provides that a marriage may be dissolved by a decree of divorce if the other party "(i) has	 after the solemnization of the marriage	 had voluntary sexual intercourse with any person other than his or her spouse	 or (i a)has	 after the solemnization of the marriage	 treated the petitioner with cruelty	 or (i b)has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition	 or (ii) has ceased to be Hindu by conversion to another religion	 or (iii)has been incurably of unsound mind	 or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that 709 the petitioner cannot reasonably be expected to live with the respondent. (EXPLANATION) omitted for the present purpose) (iv) has	 been suffering from a virulent end incurable form of leprosy	 or (v) has been suffering from venereal disease in a communicable form	 or (vi) has renounced the world by entering any religious order	 or (vii)has not been heard of as being alive for a period of seven years or more by these persons who would naturally have heard of it	 had that party been alive." (EXPLANATION omitted for the present purpose) Section 13 (1 A) provides "(i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of one year or upwards after passing of a decree for judicial separation in a proceeding to which they were parties	 or (ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or upwards after the passing of the decree for restitution of conjugal rights in a proceeding to which they were parties. " Section 13 (2) provides "(2) A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground 710 (i) in the case of any marriage solemnized before the commencement of this Act	 that the husband had married again before such commencement or that any other wife of the husband married before such commencement was alive at the time of the solemnization of the marriage of the petitioner	 or Provided that in either case the other wife is alive at the time of presentation of the petition	 or (ii) that the husband has	 since the solemnization of the marriage	 been guilty of rape	 sodomy or bestiality	 or (iii)that in a suit under section 18 of the 	 or in a proceeding under section 125 of the Code of Criminal Procedure	 1973 (or under the corresponding section 488 of the Code of Criminal Procedure	 1898)	 a decree or order	 as the case may be	 has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order	 cohabitation between the parties has not been resumed for one year or upwards	 or (iv) that her marriage (whether consummated or not) was solemnized before she attained the age of fifteen years and she has repudiated the marriage after attaining that age but before attaining the age of eighteen years. " Section 13 A provides that on a petition for dissolution of marriage by a decree of divorce	 except in so far as the petition is founded on the grounds mentioned in sec. 13 (i) (ii) (vi) and (vii)	 the court may	 if it considers it just so to do	 having regard to the circumstances of the case	 pass a decree for judicial separation. Section 13 B further provides that a petition for dissolution of marriage by a decree of divorce may be presented to the court by both the parties to the marriage together on the ground that they have been living separately for a period of one year or more	 that they have not been able to live together and that they have mutually agreed that the marriage 711 should be dissolved. If the provisions of the are compared with the provisions of the 	 it will be seen that apart from the total lack of uniformity of grounds on which decrees of nullity of marriage	 divorce or judicial separation may be obtained under the two Acts	 the contains a special provision for a joint application by the husband and wife for the grant of a decree of divorce by mutual consent whereas the contains no similar provision. Another very important difference between the two Acts is that under the 	 a decree for judicial separation may be followed by a decree for the dissolution of marriage on the lapse of one year or upwards from the date of the passing of a decree for judicial if meanwhile there has been no resumption of cohabitation. There is no corresponding provision under the and a person obtaining a decree for judicial separation will have to remain content with that decree and cannot seek to follow it up with a decree of divorce	 after the lapse of any period of time. We may also notice that irretrievable break down of marriage is yet no ground for dissolution of marriage under the also	 though the principle appears to have been recognised in sec. 13 (1 A) and sec. 13(B). We may now have a look at the provisions of the which applies only to marriages solemnized under that Act. 23 of the Act enables the husband or the wife to present a petition for judicial separation (a) on any of the grounds specified in sub section (1) and sub section (1 A) of section 27 on which a petition for divorce might have been presented; or (b) on the ground of failure to comply with a decree for restitution of conjugal rights. Section 24 declares that a marriage may be declared nullity if (i) any of the conditions specified in clauses (a)	 (b)	 (c) and (d) of section 4 has not been fulfilled; or (ii) the respondent was impotent at the time of the marriage and at the time of the institution of the suit. We may notice here that sec. 4 clauses (a)	 (b)	 (c)	 (d) and (e) provide that neither party has been subject to recurrent attacks of insanity or epilepsy	 that the male has completed 21 years of age and the female 18 years of age and that the parties are not within the degrees of prohibited marriage. Section 25 declares that a marriage shall voidable and may be annulled by a decree of nullity if	 "(i) the marriage has not been consummated owing to the 712 wilful refusal of the respondent to consummate the marriage; or (ii) the respondent was at the time of the marriage pregnant by some person other than the petitioner; or (iii)the consent of either party to the marriage was obtained by coercion or fraud	 as defined in the ." (The provisos have been omitted as they are not necessary for the purposes of this case) Section 27 enables either the husband or the wife to seek a decree of divorce on the ground that the respondent "(a) has	 after the solemnization of the marriage	 had voluntary sexual intercourse with any person other than his or her spouse; or (b) has since the solemnization of the marriage treated the petitioner with two years immediately preceding the presentation of the petition; or (c) is undergoing a sentence of imprisonment for seven years or more for an offence as defined in the Indian Penal Code; (d) has since the solemnization of the marriage treated the petitioner with cruelty; or (e) has been incurably of unsound mind	 or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent. (Explanation omitted as it is not necessary.) (f) has been suffering from venereal disease in a communicable form; or 713 (g) has been suffering from leprosy	 the disease not having been contracted from the petitioner; or (h) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of the respondent if the respondent has been alive." (Explanation omitted as it is not necessary) Section 27 (1A) enables a wife to present a petition for divorce on the ground that her husband has since the marriage been guilty of rape	 sodomy or bestiality	 or that an order for maintenance has been made against the husband and that cohabitation has not been resumed for one year or upwards after the making of the order. 27 (2) further provides that a decree for divorce may be presented on the ground that there has been no resumption of cohabitation as between the parties to the marriage for a period of one year or upwards after the passing of a decree for judicial separation. 28 provides for the passing of a decree of divorce on the presentation of a petition by both the parties together on the ground that they have been living separately for a period of one year or more	 that they have not been able to live together and that they have actually agreed that the marriage should be dissolved. It will be seen that the like the contains provisions for a decree for judicial separation being followed up by a decree of divorce if there has been no resumption of cohabitation for a year or more and also for a decree of divorce by mutual consent. Here again	 it will be seen that the principle of irretrievable break down of marriage seems to be accepted on principle	 but is not specifically made a ground of divorce. Under the 	 section 30 provides that a marriage may be declared to be null and void if consummation of a marriage is from natural causes impossible. 31 provides for the dissolation of a marriage if a husband or wife has continuously been absent for a period of seven years and has not been heard of as being alive within that time. Sec.32 provides grounds for divorce: "(a) that the marriage has not been consummated within one year after its solemnization owing to the wilful refusal of the defendant to consummate it; 714 (b) that the defendant at the time of the marriage was of unsound mind and has been habitually so up to the date of the suit; (Proviso has been omitted) (c) that the defendant was at the time of marriage pregnant by some person other than the plaintiff; (Proviso has been omitted) (d) that the defendant has since the marriage committed adultery or fornication or bigamy or rape or an unnatural offence; (Proviso has been omitted) (e) that the defendant has since the marriage voluntarily caused grievous hurt to the plaintiff or has infected the plaintiff with venereal disease	 or	 where the defendant is the husband	 has compelled the wife to submit herself to prostitution; (The proviso has been omitted) (f) that the defendant is undergoing a sentence of imprisonment for seven years or more for an offence as defined in the Indian Penal Code; (The proviso has been omitted) (g) that the defendant the deserted the plaintiff for at least three years; (h) that a decree or order for judicial separation has been passed against the defendant	 or an order has been passed against the defendant by a Magistrate awarding separate maintenance to the plaintiff	 and the parties have not had marital intercourse for three years or more since such decree or order; (i) that the defendant has failed to comply with a decree for restitution of conjugal rights for a year or more; and 715 (j) that the defendant has ceased to be a Parsi." (Proviso has been omitted) Section 34 provides for judicial separation on any of the grounds on which divorce could be sought; or on the ground that the defendant has been guilty of such cruelty to him or her or to her children or has used such personal violence	 or has behaved in such a way as to render it in the judgment of the court improper to compel him or her to live with the defendant. It will be noticed here that under the also	 mutual consent and irretrievable break down of marriage are not grounds of divorce though a decree for judicial separation may be followed by a decree of divorce if the parties have not had marital intercourse for three years or more since such decree or order. Under the Mohammedan Law	 a Muslim husband may divorce his wife by the pronouncement of talaq. A Muslim wife may after the passing of the dissolution of Muslim Marriages Act	 1939	 obtain a decree for a dissolution of a marriage on one of the following grounds: "(i) that the whereabouts of the husband have not been known for a period of four years; (ii) that the husband has neglected or has failed to provide for her maintenance for a period of two years; (iii)that the husband has been sentenced to imprisonment for a period of seven years or upwards; (iv) that the husband has failed to perform	 without reasonable cause	 his martial obligations for a period of three years; (v) that the husband was impotent at the time of the marriage and continues to be so; (vi) that the husband has been insane for a period of two years or is suffering from leprosy or a virulent venereal disease; (vii)that she	 having been given in marriage by her father 716 or other guardian before she attained the age of fifteen years	 repudiated the marriage before attaining the age of eighteen years (Proviso has been omitted as it is not necessary) (viii)that the husband treats her with cruelty that is to say (a) habitually assaults her or makes her life miserable by cruelty of conduct even if such conduct does not amount to physical ill treatment	 or (b) associates with women of evil repute or leads an infamous life	 or (c) attempts to force her to lead an immoral life	 or (d) disposes of her property or prevents her exercising her legal rights over it	 or (e) obstructs her in the observance of her religious profession or practice	 or (f) if he has more wives than one	 does not treat her equitably in accordance with the injunctions of the Qoran; (ix) on any other ground which is recognised as valid for the dissolution of marriages under Muslim Law." (The proviso has been omitted as it is not necessary in the present case). We may add that under strict Hanafi Law	 there was no provision enabling a Muslim women to obtain a decree dissolving her marriage on the failure of the husband to maintain her or on his deserting her or maltreating her and it was the absence of such a provision entailing 'inspeakable misery in innumerable Muslim women ' that was responsible for the dissolution of the Muslims Marriages Act	 1939. (See Statements of Objects and Reasons of that Act). If the legislature could so alter the Hanafi Law	 we fail to understand the hallabalcoo about the recent judgment of this court in the case of 717 Mohd. Ahmed Khan vs Shah Bano Begum & Ors. interpreting the provisions of sec. 125 of the Criminal Procedure Code and the Muslim Law. it is also necessary to add that Mohammedan Law provides for a decree for divorce known as Khula and mubara ' at by agreement of parties. It is thus seen that the law relating to judicial separation	 divorce and nullity of marriage is far	 far from uniform. Surely the time has now come for a complete reform of the law of marriage and make a uniform law applicable to all people irrespective of religion or caste. It appears to be necessary to introduce irretrievable break down of marriage and mutual consent as grounds of divorce in all cases. The case before us is an illustration of a case where the parties are bound together by a marital tie which is better untied. There is no point or purpose to be served by the continuance of a marriage which has so completely and signally broken down. We suggest that the time has come for the intervention of the legislature in these matters to provide for a uniform code of marriage and divorce and to provide by law for a way out of the unhappy situations in which couples like the present have find themselves in. We direct that a copy of this order may be forwarded to the Ministry of Law and Justice for such action as they may deem fit to take. In the meanwhile	 let notice go to the respondents.

Summary:
The petitioner belonged to the 'Khasi Tribe ' of Maghalaya and was born and brought up as a Presbytarian Christian. She is now a member of the Indian Foreign Service. The respondent husband is a Sikh. They were married under the . The petitioner filed a petition in 1980	 for declaration of nullity of marriage or judicial separation under sections 18	 19 and 22 of the 	 on the ground of the impotence of her husband. A Single Judge of the High Court rejected the prayer for declaration of nullity of marriage	 but granted a decree for judicial separation on the ground of cruelty. Division Bench affirmed the decision of the Single Judge on appeal. In the special leave petition filed by wife	 ^ HELD: (1) A comparison of the relevant provisions of the Christian Marriage Act 1872	 	 	 	 Dissolution of Muslim Marriage Act	 1939	 show that the law relating to judicial separation	 divorce and nullity of marriage is far	 far from uniform. [717 B] (2) Under the 	 a decree for the judicial separation may be followed by a decree for the dissolution of marriage on the lapse of 705 one year or upwards from date of the passing of a decree for judicial separation	 if meanwhile there has been no resumption of cohabitation. There is no corresponding provision under the and a person obtaining a decree for judicial separation will have to remain content with that decree and cannot seek to follow it up with a decree of divorce	 after the lapse of any period of time. [711 B C] (3) In the instant case	 the marriage appears to have broken down irretrievably. If the findings of the High Court stand	 there is no way out for the couple. They will continue to be tied to each other since neither mutual consent nor irretrievably break down of marriage is a ground for divorce	 under the . There is no point or purpose to be served by the continuance of a marriage which has so completely and signally broken down. The parties are bound together by a marital tie which is better untied. [717 B C] (4) Time has now come for the intervention of the legislature to provide for a uniform code of marriage and divorce as envisaged by Article 44 and to provide by law for a way out of the unhappy situations in which couples find themselves in. It is necessary to introduce irretrievably break down of marriage	 and mutual consent as grounds of divorce in all cases. [717 C D]