PETITIONER:
REYNOLD RAJAMANI & ANR.
Vs.
RESPONDENT:
UNION OF INDIA & ANR.
DATE OF JUDGMENT30/07/1982
BENCH:
PATHAK, R.S.
BENCH:
PATHAK, R.S.
REDDY, O. CHINNAPPA (J)
ISLAM, BAHARUL (J)
CITATION:
1982 AIR 1261 1983 SCR (1) 32
1982 SCC (2) 474 1982 SCALE (1)566
ACT:
Indian Divorce Act 1869, Ss. 7, 10 - `Mutual consent'
whether a ground for divorce.
Interpretation of Statutes-Matrimonial statutes -
Legislation by incorporation - Post 1947 British laws
whether incorporated into Indian law.
HEADNOTE:
The appellants, who were husband and wife belonging to
the 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 the ground
that section 28 of the Special Marriage Act could not be
availed of. The Supreme Court allowed the appellants to
amend their joint petition to enable them to rely on section
7 of the Indian Divorce Act 1869 read with section 1 (2)(d)
of the Matrimonial Causes Act 1973 of England and to seek
divorce on the ground that they had been living separately
for more than two years and had not been able to live
together and that the marriage had broken down
irretrievably, and that therefore they were entitled to a
decree of divorce. The District Court however dismissed the
petition holding that they were not entitled to rely on
section 1 (2)(d) of the English Statute. In appeal the High
Court affirmed the view taken by the trial Court.
In the appeal to this court it was contended on behalf
of the appellants: (1) that the trial court and the High
Court were wrong and that section 7 of the Indian Divorce
Act 1869 incorporated the provisions of section 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
Patent jurisdiction enjoyed by the High Court in Matrimonial
matters is sufficiently extensive to enable the High Court
to make a decree for divorce.
Dismissing the appeal,
^
HELD: [By the Court]
33
Mutual consent is not a ground for divorce under the
Indian Divorce Act 1869. The provisions of section l(2)(d)
of the Matrimonial Causes Act 1973 of England cannot be read
into section 7 of the Indian Divorce Act, 1869. [39 A]
[Per Pathak and Baharul Islam, JJ.]
1. Whether a provision for divorce by mutual consent
should be included in the Indian Divorce Act is a matter for
legislative policy. The courts cannot extend or enlarge
legislative policy by adding a provision to the statute
which was never enacted there. 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. [38 C-D; 39 F]
2. The Letters Patent jurisdiction enjoyed by the High
Court in matrimonial matters cannot be construed to include
a ground for divorce not specifically set forth in section
10 of the Indian Divorce Act, 1869. [39 E]
M. Barnard v. G.H. Barnard A.I.R. 1928 Cal. 657; Miss
Shireen Mall v. John James Taylor A.I.R. 1952 Pb. 277: T.M.
Bashiam v. M. Victor A.I.R. 1970 Mad. 12; aad A. George
Cornelius v. Elizabeth Dopti Samadanam A.l.R. 1970, Mad.
240. approved.
[Per Chinnappa Reddy and Baharul Islam, JJ.]
Legislation whenever made by Parliament of a foreign
state cannot automatically become part of the law of another
sovereign state. Whatever interpretation of section 7 of the
Indian Divorce Act, 1869 was permissible before August 15,
1947 when the British Parliament had plenary powers of
legislation over Indian territory, no interpretation is now
permissible which would incorporate post-1947 British laws
into the Indian laws. [39 G-H; 40 A]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2631 of
1982.
Appeal by special leave from the judgment and order
dated the 3rd October, 1980 of the Delhi High Court in C..
(Main) No. 184 of 1980.
Miss Lily Thomas, K S. Gill and S.K. Arora, for the
Appellant.
S.T. Desai and Miss A. Subhashini for the Respondent.
The following Judgments were delivered;
PATHAK J. The appellants, who belong to the Roman
Catholic community, were married on December 30, 1967 in
34
Podannur in the State of Tamil Nadu under s. 27 of the
Indian Christian Marriage Act, 1872. On July 26, 1979 they
put in a joint petition under s. 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 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 appeal to this
Court. In the appeal they applied for permission to amend
the joint petition to enable them to rely upon s. 7 of the
Indian Divorce Act, 1869 read with s. 1 (2) (d) of the
Matrimonial Causes Act, 1973 of England. The amendment was
allowed, and the appellants filed an amended joint petition
i n 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 s.
I (2) (d) of the English statute. The appellants took the
matter to the High Court or Delhi and the High Court has
affirmed 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) (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’s 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’s 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 sometime. 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.
35
The main contention raised by Miss Thomas is that the
appellants are entitled to the benefit of s. 7 of the Indian
Divorce Act and therefore, by reason of that provision, to
rely on s. 1 (2) (d) of the Matrimonial Causes Act, 1973.
There is no doubt that if the provisions of s. 1 (2) (d) of
the English statute can be read in s. 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. I (2) (d) of the English
statute can be read in s. 7 of the Indian Divorce Act Sub-
ss. (l) and (2) of s. I of the Matrimonial Causes Act, 1973
provides:-
“(I) 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;
36
(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-s. (2) of s. 1 constitute
the basis for holding that the marriage has broken down
irretrievably. Can these provisions be deemed incorporated
in s. 7 of the Indian Divorce Act ? S. 7 provides:-
“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
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 anc 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 placed 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 s. 10 of
the Indian Divorce Act. For s. 10 sets fourth the limited
grounds on which a petition may be presented by a husband or
wife for dissolution of the marriage.
37
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 continution
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 meaning which the
language of the section is capable of holding. It cannot’ be
extended by adding new grounds not enumerated in the
section.
When therefore s. 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, s. 7 does
not. We may point out that in M. Barnard v. G.H. Barnard(l)
the Calcutta High Court repelled a similar contention 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 forth in s. I()” 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
Shireen Mall v. John James Taylor(2) has also taken the view
that the grounds set forth in s. 10 of the Indian
(l) AIR 1928 Cal. 657.
(2) AIR 1952 Pb. 277.
38
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. Bashiam v. Victor(l) and a Single Judge of that Court
in A. George Cornelius v. Elizabeth Dopti Samadanam.(2)
Miss Thomas appeals to us to adopt a policy of “social
engineering” and to give to s. 7 the content 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 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.
Reference is made by Miss Thomas to s. 2 (ix) of the
Dissolution of Muslim Marriage 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 s. 10 of the Indian
Divorce Act.
Learned counsel of the appellants has referred us to B.
Iswarayya v. Swarnam Iswarayya(3) and George Swamidoss
Joseph v. Miss Harriet Sundari Edward.(4) 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.
(1) A.l.R. 1970 Mad. 12.
(2) A.l.R. 1970 Mad. 240.
(3) A.I.R. 1931 Privy Council 234.
(4) A.l.R. 1955 Mad. 341.
39
We are not 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 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 com plain of the disadvantage
now suffered by them.
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 E 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 con- sent. The appeal fails 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. 1(2)(d) of
the British Matrimonal Causes Act, 1973 cannot be read into
the Indian Divorce Act merely because of s. 7. lt is
unthinkable that legislation whenever made by the Parliament
of a foreign state may automatically become part of the law
of another 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
had 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, has 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 between the sexes. But the world
is still a man’s world and 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 the sexes appears to be a very distant
goal. One has only to read the daily sickly reports of
‘dowry deaths’ and ‘atrocities on women’ to realise that
women, 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 inequality will end when social and
economic inequality ends. It isl therefore, obvious that
true equality between the sexes and else where is possible
only when economic and social inequalities disappear. Our
Constitution proclaims, in the Preamble, the establishment
of a socialist State where there will be justice, social,
economic and political, as our constitutional goal and this
is reiterated in the Fundamental Rights’ and Directive
Principles’ Chapters. But, the march towards equality’ and
economic and social justice is still a ‘long march’ and
meanwhile, what of divorce by mutual consent ? Yes, I agree
with Miss Lily Thomas that divorce by mutual consent should
be 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 protected. Our society still looks askance at
a divorced woman. A woman divorcee is yet a suspect. Her
chances of survival are diminished by the divorce. So, the
law which grants the decree for divorce must secure for her
some measure of economic
41
independence. It should be so whatever be the ground for
divorce, A whether it is mutual consent, irretrievable break
down of the marriage, or even the fault of the woman
herself. Every divorce solves a problem and creates another.
Both problems need to be solved, no matter who is
responsible for the break down of the marriage. If the
divorce law is to be a real success, it should make
provision for the economic independence 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 interest.; even if she be an erring
spouse, lest she become destitute and a dead loss to
society.
N.V.K. Appeal dismissed.
42