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1-04

MS. JORDAN DIENGDEH

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S.S, CHOPRA

May 10, 1~85

(0. CHJI'iNAPPA REDDY AND R.B. MISRA, JJ J

Conslitulion of !ndia-Articlt 44-Uniform Civil Ct>de-Necessity a/­

Emphasised.

Indian Divurce Act, 1869-Ss. 18, 19 and 22-Petition fJy wife-A/legation

of impCftence of husband-1Vullity of marriage or judicial separation sought­

High Court rl!jecting prayer for nullity, but granting judicial Jeparation on

account af cruelty-Validily of order-Supreme Court holding irrelrievable

break-down of marriage.

Hindu Marriage Act, 1955 SJ. IO and 13B-Sptcial Marriage Act, 1954-

SJ. 23 to 28-Parsi Marriage and Di'Porce Act, 1936-Ss. 31 to 34-Dissolution

of Muslim Marriage Act, 1939-S. 2-GrJunds for dissolution of marriage not

uniform--Necessily for uniform Cirii Code-Stressed.

The petitioner belonged to the •K.basi Tribe' of Maghalaya and was

born and brought up as a Presbytarian Christian. She is now a n1ember of

the Indian Foreign Service. The respondent-husband is a Sikh. They were

married under the lndian Christian Marriage Act 1872. The petitioner filed

a petition in

19&0, for declaration of nultity of marriage or judicial separation

under ss.

18,

1'::1and22 of the Indian Divorce Act, 1869, 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

appeaJ.

In

the

speCiJll leave petition filed by wife,

HELD : (1) A comparison of the relevant provisions of the Christian

Marriage Act 1872, Hindu Marriage Act 1955, Srecial Marriage Act 1954,

Parsi Marriage and Divorce Act 1936, Dissolution of Muslim Marriage Act~

1939, show that the law relating to judicial separation. divorce and nullity of

marriage is far, far fro1n uniform. [717 BJ

(2) Under the Hindu Marriage Act, a decree for the judicial separation

may be followed

by a decree for the dissolution of marriage on the lapse of

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J. DIENGDEH \", S.S. CHOPRA (Chinnappa Reddy, J.) 705

one year or upwards from date of the passing of a decree for judicial separa~

tion, if meanwhile there has been no resumption of cohabitation. There is no

corresponding provision under the Indian Divorce Act 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 or divoece, after the lapse of any

period of time.

1711 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 Indian Divorce Act. There

is no point or purpose to be served by

the continuance or a marriage which has so completely and signally broken

down. The parties are bound together

by a marital tic which is better

untied. (717 B-C]

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(4) Time

has now come for the intervention of the legislature to

provide For a uniForm code or 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 Preak­

down of marriage, and mutual consent as grounds of divoree in all cases.

[717 C.D] D

CIVIL APPELLATE JUKISOICTION : 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 Art. 44 of the Constitution which provides that "The State shall endeavour to secure for the citizens a uniform civil

code through out the terriotory of India." The present case is yet

another which focusses 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 v. Shah

Bano Beirum & Ors.)

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706 SUPREMB COURT REPORTS [1985) SUPPL. s.c.R.

"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

integra­

tion 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 bas 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

Presby·

tarian Christian at Shillong. She is now a member of the Indian

Foreign Service. The husband is a Sikh. They were married under

the Indian Christain Marriage Act,

1872. The marriage was

perfor­

med 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 Indian Divorce Act, 1869. 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 judg.nent 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

m

1rriage. 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 ]\usband in that though the husband is of achievini

•

J. DIENGDEH v. s.s. CHOPRA (Chinnappa Reddy, J.) 707

erection and penetration, he ejaculates prematurely before the wife

has an orgasm, leaving the wife totally unsatisfied and frustrated. A

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 ol the High Court stand, there is no way out for the

couple, they

will continue to be tied to each other since neither B

mutual consent nor irretrievable break down of marriage is a ground

for divorce, under the Indian Divorce Act. Section

10 the Indian

Divorce Act 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 dis-

C

solution 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 bastiality, adultery coupled with cruelty,

adultery coupled with desertion for more than two years.

It must D

be noted that the Indian Divorce Act 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--

"(!) that the respondent'"'" impotent at the time l!l

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

force."

Section 22 provides for judicial aseparation at the instance of either

husband or

wife on the ground of adultery, cruelty or deseration 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

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708 SUPREME COURT l.BPOll.TI (1985) SUPPL. l.C.R,

decrees of nullity of marriage, divorce and juudicial separation.

Under the Hindu Marriage Act, sec. I 0 provides for judicial separa­

tion. 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. 13. Section

11 provides for a declaration that a marriage is a nullity if it contra­

vene as any one of the conditions specified in clauses (i), (iv) and (v)

of sec. 5. Sec. 5 (i) requires that neither party has a spouse living at

the time

of the marriage.

Sec. 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.

Sec. 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

annulied 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 pragnant by

some person other than the petitioner.

Section 13(1) enumerates the

grounds for the dissolution

of a marriage on the petition of a

hus­

band 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 \lisorc;ler of such a kind and to such an elltent that

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j, blENODEH v. s.s. CHOPRA (Chinnappa Reddy, J.) 709

the petitioner cannot reasonably be expected to live

with the respondent.

{EXPLANATION omitted for the present purpose)

(iv) has, been suffering from a virulant end incurable

form

of leprosy, or

(v) has been suffering from venereal disease in a

com­

municable form, or

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{vi) has renounced the world by entering any religious C

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) provide•-

"{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

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(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 restituation

of conjugal rights in a

proceedin£ to G

which they were parties.''

Section 13 (2) provides-

"(2J A wife may also present a petition for the dissolution

of her marriage by a decree of divorce on the

ground-

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(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

sole­

mnization 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

(i) 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 Hindu

Adop·

tions and Maintenance Act, 1956, 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

not·

withstanding 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,

ex.;ept 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

separate•

ly 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

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i. DIENGDEH v. s.s. CHOPRA ( Chinnappa Rtndy, J.) 711

should be dissolved. If the provisions of the Hindu Marriage Act

are compared with the provisions

of the Indian Divorce Act, 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 Hindu Marriage Act

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 Indian Divorce

Act contains no similar provision.

Another very important difference between the two Acts is

that

under the Hindu Marriage Act, 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 Indian Divorce Act

and a person obtaining a

dee ree 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 Hindu Marriage Act

also, though the principle appears to have been recognised in sec.

13 (l-A) andscc. l3(B).

We may now have a look at the provisions of the Special

Marriage Act, 1954 which applies only to marriages solemnized

under that

Act.

Sec.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

(I) 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

respon­

dent was impotent at the time of the marriage and at the time of the

instituation 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 nulity if, -

"(i) the marriage has not been consumatted owing to the

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712 SUPREME COURT REPORTS (1985] SUPPL. s.c.a.

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

Indian Contract Act,

1872."

(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

eAtent

that the petitioner cannot reasonably be e~pected to

Jive with the respondent.

(Explanation omitted as

it is not necessary.)

(f) has been suffering from venereal disease in a com­

municable form;

or

J, DIENGDEH v. s.s. CHOPRA (Chinnappa Reddy, J.)

(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

respon­

dent has been alive."

(Explanation omitted as it is not necessary)

713

Section 27 (IA) enables a wife to present a petition for divorce on

the ground that her husband has

since the marriage been guilty of

rape, sodemy 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.

Sec. 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

separa­

tion. Sec. 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 Special Marriage Act like the Hindu Marriage Act

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 Parsi Marriage and Divorce Act,

1936, section

30

provides that a marriage may be declared to be null and void if

consummation

of a marriage is from natural causes impossible. Sec. 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

pro­

vides 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;

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SUPREME COURT REPoRTS (198$] SUPPL, S.C.k.

(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 ofmarriage

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

im·

prisonment 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 again

st the defendant, or an order has been

passed against the defendant

by a Magistrate

award·

ing 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 restituation

of conjugal rights for a year or more;

and

j. bIENGDEH v. s.s. CHOPRA (Chinnappa Reddy, J.) 715

(j) that the defendant has ceased to be a Parsi."

(ProviEe has been omitted)

Section 34 provides for judicial separation on any of the grounds on

whicb divorce could be sought; or on the ground that the defendant

has been guility

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

Jive with the defendant. It will be noticed here that under

the

Parsi Marriage and Divorce Act 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 Mohammadan 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

pro­

vide 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 matrial 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

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years or is suffering from leprosy or a virulent veneral H

disease;

(vii) that she, having been given in marriage

by her father

716

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SUPREME COURT REPORTS (1985) SUPPL. s.c.R.

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)

8 (viii) that the husband treats her with cruelty that is to

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say-

(a) habitually assults her or makes her life miserable

by cruelty of conduct even if such conduct does

not amount to physical illtreatment,

or

(b) associates with women of evil repute or leads an

infamous life, or

(c) attempts to force her to lead an immeral life, or

(d) disposes

of her property or prevents her

exercis­

ing 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 bas been omitted as it is not necessary

in the present case).

We may add that under strict Hanafi Law, there was no

provmon

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

J. DIBNGDBH V, S.S. CHOPRA (Chinnappa Reddy, J.) 717

Mohd. Ahmed Khan v. Shah Bano Begum & Ors. interpreting the

provisions

of sec. 125 of the Criminial

Procedure Code aad the

Muslim Law.

It is also necessary to add that Mehamedan 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

irretrieva·

ble 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

interven·

tion 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. A.P.J.

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