Topic: Jorden Diengdeh v/s S.S. Chopra - Irretrievable breakdown of marriage

Ms. Jorden Diengdeh v S.S. Chopra
Equivalent citations: 1985 AIR 935, 1985 SCR Supl. (1) 704 - Bench: Reddy, O. Chinnappa (J), Misra, R.B. (J) - Citation: 1985 Air 935 1985 Scr Supl. (1) 704 1985 Scc (3) 62 1985 Scale (1)952 - Date of Judgment: 10/05/1985

ACT:
Constitution of India-Article 44-Uniform    Civil Code- Necessity of-Emphasised.

Indian Divorce, Act, 1869-Ss. 18, 19 and 22-Petition by wife-Allegation of impotence of husband-Nullity of marriage or judicial separation sought-High Court rejecting prayer for nullity, but granting judicial separation on account of cruelty-Validity of     order-Supreme Court holding irretrievable break-down of marriage.

Hindu Marriage Act, 1955 ss.    10 and     13B-Special Marriage Act, 1954-Ss. 23 to 28-Parsi Marriage and Divorce Act, 1936-Ss. 31 to 34-Dissolution of Muslim Marriage Act, 1939-S. 2-Grounds for dissolution of marriage not uniform- Necessity for uniform Civil Code-Stressed.

HEADNOTE:

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 Indian Christian Marriage Act 1872. The petitioner filed a     petition in 1980, for     declaration of     nullity of marriage or judicial separation under ss. 18, 19 and 22 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 appeal. In the special leave petition filed by wife, ^

HELD: (1)    A comparison of the relevant provisions of the Christian Marriage Act 1872, Hindu Marriage Act 1955, Special 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 from uniform. [717 B] (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 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    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 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 Indian Divorce Act. 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]

JUDGMENT:

CIVIL APPELLATE JURISDICTION: 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 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 v. Shah Bano Begum & Ors.)

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"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    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 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

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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     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    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 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- "(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

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decrees     of nullity of marriage, divorce and judicial separation. Under the Hindu Marriage Act, 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.     13. 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. 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 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

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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-

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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 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 Hindu Adoptions 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 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 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 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 Hindu Marriage Act 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 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 (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 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 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

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(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. 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 separation. 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    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

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(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 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    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

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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

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Mohd. Ahmed Khan v. 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.

A.P.J.