Topic: Anil Kumar Mhasi v. Union of India

Anil Kumar Mhasi v. Union of India
Supreme Court of India - Equivalent citations: 1994 SCC (5) 704, JT 1994 (4) 409 - Bench: Sawant, P.B.,YOGESHWAR DAYAL (J) - CITATION:  1994 SCC  (5) 704, JT 1994 (4)409, 1994 SCALE  (3)447 - DATE OF JUDGMENT20/07/1994

The Judgment of the Court was delivered by SAWANT, J.- The hearing of this petition is confined only to examining the vires of Section 10 of the Indian Divorce Act, 1869 (hereinafter referred to as the 'Act'). The petitioner was married to Respondent 2, Monika on 8-10-1986 as per    the Christian rites in a Methodist Church    at Muzaffarpur in Bihar.    After marriage, the parties returned to Delhi on 10- 10-1986. Respondent-Monika, however, left the    matrimonial home on 26-12-1986, i.e., two months and    a fortnight thereafter and    never returned to it again. It is not in dispute (respondent-Monika has not filed any counter to    the petition) that the parties have been living separately since the day of the desertion by Monika on 26-12-1986 as alleged in the petition. The petitioner further alleges that    she has been working as a teacher in St. Mary    Girls' High School, Deogarh, Bihar.

2. In spite of notice to respondent-Monika and intimation to her    that the petitioner had deposited Rs 3000 for    her costs in attending the Court and the assistance of a Senior Advocate, Shri K.K. Venugopal is given to her to conduct her case, she has neither filed counter, nor attended the Court. On the other hand, by a letter of 5-1-1993 she has intimated the Court that she is unable to attend the Court and    that she would abide by the decision of the Court.

3. Since the    vires of Section 10 was under challenge, notice    was issued to the Attorney General. The Attorney General, however, did not choose to put in his    appearance. We were, however, ably assisted by Shri Venugopal, learned Senior    Advocate appointed to represent respondent-Monika. After the matter was heard, oral directions were given to the parties to submit their    written submissions.    The petitioner was to file his written submissions first and the respondents were to file the written submissions within    two weeks thereafter. In spite of our listing the matter on 19- 1-1994 again for reminding the parties to file their written submissions, the petitioner has not done so and consequently the respondents have not filed their written    submissions. We are, therefore, proceeding to deliver this    judgment on the basis of the oral submissions and in the absence of    the assistance of the Attorney General.

4. The petitioner had initially challenged vires    of Section 10 of the Act as being arbitrary, discriminatory and violative of Articles    14, 19, 21 and    44. However,    the challenge on the ground of violation of Articles 19, 21    and 44 has not been pressed. We may mention here that Article 44 was invoked since the other prayer of the petitioner    was to direct the first respondentUnion of India to enact a common civil code. That relief is no longer pressed and, as stated earlier, the petition is confined to the challenge to Section    10 of the Act on the ground of the violation of Article    14 of the Constitution. The relevant    portion of Section 10 reads as follows :

"10. When husband may petition    for dissolution.- Any husband may    present a petition to the District Court or to the    High Court, praying that his marriage may    be dissolved on the ground that his wife    has, since the solemnization thereof, been guilty of adultery.
When wife may petition for dissolution.-    Any wife may present a petition to the District Court or to the High Court, praying that    her marriage    may be dissolved on the ground    that since the solemnization thereof, her husband has exchanged his profession of    Christianity for the profession of some other religion, and gone through a form of marriage with another woman;
or has been guilty of incestuous adultery, or of bigamy with adultery, or of marriage with another    woman    with adultery, or of rape, sodomy or bestiality, or of adultery coupled with such    cruelty as without adultery would have entitled her to a divorce a mensa et thoro, or of adultery coupled with desertion, without reasonable excuse, for two years or upwards."
It will be apparent from the aforesaid provisions that while the husband can seek dissolution of marriage on the ground that his wife has been guilty of adultery simpliciter,    the wife has to prove that the husband has been guilty of adultery which is (i) incestuous, (ii) coupled with bigamy,

(iii) coupled with marriage with another woman, (iv) coupled with cruelty which without adultery would have entitled    her to divorce a mensa et thoro, (v) coupled with desertion without reasonable excuse for two years or upwards. It    is, therefore, clear that as far as the ground of adultery is concerned, it is the husband who is in a favourable position as against the wife, since it is not enough for the wife to prove adultery simpliciter on the part of her husband.    To that extent, undoubtedly, it is the wife who    is discriminated against.    As regards the other grounds which are available    to the wife to    claim    dissolution of    the marriage, which grounds are impliedly not available to    the husband, the same are as follows (a) that the husband    has exchanged his profession of Christianity for the profession of some other religion and gone through a form of marriage with another woman, and (b) that the husband is guilty of rape, sodomy or bestiality. It will be evident from these two grounds that a mere exchange of    the profession of Christianity for the profession of another religion on    the part of the husband is not enough. The wife has also to prove that the husband has married another woman. Since, however, the husband can seek dissolution of the marriage only on the ground of adultery, the husband is not at a disadvantage as against his wife because a mere marriage with another man whether after exchanging the profession of religion or not, would give a ground to the husband to    seek dissolution of marriage. It would thus be seen that even as far as this ground is concerned, it is the wife who is at a disadvantage.

5. As    regards the only other grounds unavailable to    the husband, they are of rape, sodomy or bestiality. Although the modern usage of the word 'rape' extends also to    the forcible sexual intercourse by a woman with    a man,    the dictionary meaning of the said word as well as the offence of rape as defined in the Indian Penal Code speak only of forcible sexual intercourse by a man with a woman. We have, therefore, to    accept the latter meaning of the said    word while construing the provisions of the Act which is one of the vintage enactments on our statute book. Hence, it cannot    be said that there is    any discrimination between husband and wife because the ground of rape is not available to the husband for dissolving the marriage.

6. As    regards sodomy, the word is defined in Black's    Law Dictionary (5th Edn.) to mean :

"A carnal copulation by human beings with each other against nature, or with a beast. State v. Young, 140 Or. 228, 13 P. 2d 604,    607. Sodomy is oral or anal    copulation between persons who are    not husband and wife or between    consenting adult members of    the opposite    sex, or between a person and an animal, or coitus with    an animal. Kansas Criminal Code."
Shorter Oxford English Dictionary defines the word 'sodomy' to mean "An unnatural form of sexual intercourse, esp.    that of one    male with another".    Section 377 IPC defines "unnatural offences" as follows :

"377.    Unnatural offences.- Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a    term which may extend to ten    years,    and shall also be liable to fine.

Explanation.- Penetration is sufficient to constitute the camal intercourse necessary to the offence described in this section."

7. It    can, therefore, be said that a woman can also be guilty    of sodomy. So will be the position in the case of the offence of bestiality. The discrimination, therefore, can be alleged by the husband only on the basis that these two grounds, viz., sodomy and bestiality, are not available to him for claiming dissolution of his marriage whereas    the same are available to the wife for the purpose.

8. Taking into consideration the    muscularly weaker physique of the woman, her general vulnerable physical    and social condition and her defensive and non-aggressive nature and role particularly in this country, the legislature    can hardly be faulted if the said two grounds are made available to the wife and not to the husband for seeking    dissolution of the    marriage. For the same reasons, it can hardly be said that on that account the provisions of Section 10 of the Act are discriminatory as against the husband.

9. We, therefore, find that there is no substance in    the challenge by the petitioner-husband to the vires of    the provisions of Section 10 as being discriminatory against the husband    and, therefore, violative of Article    14 of    the Constitution.

10. What is further, the individuals not willing to submit to the Indian Divorce Act or any other personal law are    not obliged to marry exclusively under that law. They have    the freedom    to marry under the Special Marriage    Act, 1954. Having,    however, married under the Act and accepted    its discipline, they cannot be heard to complain of its rigors, if any.

11. In    this view of the matter, we find no merit in    the petition and it is dismissed.    In the circumstances of    the case, there will be no costs.