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TMI Blog2010 (2) TMI 1282X X X X Extracts X X X X X X X X Extracts X X X X ..... itor General of India. W.P.(c) No.24219/08 is being disposed of by a separate judgment in view of certain vital difference in the facts scenario in that case. In fact we note that the bulk of arguments were advanced in W.P.(c) No.24219/08. We must straightaway record our appreciation for the able and effective assistance rendered to us by Sri.G. Shrikumar who appeared as amicus curiae as also Advocate Sri. Ligi J. Vadakkedom who appeared for one of the parties. 3. To the vital and crucial facts first. The petitioner and the 2nd respondent are spouses. They are Christians by faith. Their marriage was solemnized on 6/4/08 in accordance with Christian religious rites. Differences and disagreements arose instantly after marriage and the spouses started separate residence with effect from 21/9/08. The petitioner herein filed an application for divorce on 5/12/08. That petition was numbered as O.P.No.1313/08. During the pendency of that petition, the parties appear to have settled all their outstanding disputes. They entered into Ext.P1 agreement. They consequently filed I.A.No.536/09 with a prayer that the marital tie may be dissolved by a decree for divorce on mutual consent under S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rue, pass a decree declaring the marriage to be dissolved with effect from the date of decree. (emphasis supplied) The provision is in substance a verbatim reproduction of the provision in Sec.13B of the Hindu Marriage Act, Sec.32B of the Parsi Marriage and Divorce Act and Sec.28 of the Special Marriage Act. The only difference is that instead of the period of two years mentioned in Sec.10A(1) emphasised above, one year is the period of separate residence stipulated in those provisions. 6. The first contention is that the period of two years under Sec.10A(1) and the period of six months under Sec.10A(2) of the Divorce Act must have been waived by the Family Court in its discretion. We find absolutely no merit in this contention at all. Under the body of Sec.10A(1), four conditions must co-exist before an application can be made. They are: A. The marriage between the spouses must have been solemnized; B. They have mutually agreed that the marriage should be dissolved by mutual consent; C. That they have not been able to live together; and D. That they have been living separately for a period of two years or more. 7. We are satisfied that these are the essent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p, friendship, mutual complementarity, love, affection, caring and sharing between two equal partners. Partners walk into the institution of marriage purely based on their consent and volition though after they enter such institution voluntarily, they are bound by the legal norms, ideas and procedure. 11. From a totally indissoluble institution, winds of change have swept the institution of marriage. Initially divorces on the ground of marital contumaciousness and non-existence of vitals necessary to make a marriage work were recognised by law. But later it was recognised that matrimony is after all a human institution - a bond created by exercise of the free act of will by the partners who are responsible; but fallible individuals who may err and blunder. With this emerged the concept of divorce by mutual consent. When the partners find it impossible to live out their lives with happiness and meaningfully, they were granted the option in law to walk out of such marriage subject to conditions by mutual consent. Today, most modern systems of jurisprudence recognise and accept the right of the spouses to get their marriage dissolved by mutual consent. This transformation in the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vorce Act, there is no justification constitutionally acceptable for insisting on a different longer period of mandatory minimum separate residence so far as the Christians to whom Sec.10A of the Divorce Act applies, contend counsel. The learned counsel urge that the stipulation is unconstitutional as it offends the mandate of equality under Art.14 of the Constitution. 14. It is secondly contended that such stipulation of the longer period of minimum mandatory separate residence offends the right to life guaranteed under the Constitution. It is trite that the right to marry and right to obtain divorce by mutual consent must be reckoned as incidents of the right to life. Right to life can be curtailed or regulated only by procedure established by law. Such procedure, to pass the test of constitutionality must be fair, just, reasonable and right and should not be arbitrary, fanciful or oppressive. The stipulation of the longer period of two years is arbitrary, fanciful and oppressive. It is unreasonable. It offends the core constitutional value of respect to the dignity of life. Spouses during their active period of fertility and re-productivity will be unnecessarily and unreasona ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tal rights guaranteed under Part-III of the Constitution. Art.13 has no application whatsoever in such a situation, contends the learned ASGI. 19. Sri.G. Shrikumar, the amicus curiae, questions the correctness of the dictum in Narasu Appa (supra). The learned counsel contends that the view taken by the Bombay High Court in that decision has not been approved by jurists. The learned counsel points out that Sri.H.M. Seervai in his work Constitutional Law of India has opined as follows: There is no difference between the expression existing law and law in force and consequently personal law would be existing law and law in force . This conclusion is strengthened by the consideration that custom, usage and statutory law are so inextricably mixed up in personal law that it would be difficult to ascertain the residue of personal law outside them; it was, therefore, necessary to treat the whole of personal law as law in force under Article 372 and to continue it subject to the provisions of the constitution and subject to the legislative power of the legislature. It is further pointed out that the learned author has finally opined as follows: Finally Entry 5 List 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is continuing to operate, the same can be superseded/ supplemented by introducing a uniform civil code. (emphasis supplied) 22. It is also brought to our notice that a learned single Judge of Bombay High Court in Re Smt. Amina (AIR 1992 Bombay 214) has doubted the proposition enunciated in Narasu Appa (supra) and had referred the matter to a larger Bench. Our attempts to ascertain the result of the said reference has not been successful. We note that the Delhi High Court had also made an effort to trace the answer on reference by the larger Bench; but as stated in Kalawati v. Union of India (L.A.A.No.650/08 and CM No.9226/08 dated 27/1/09), that court was also not able to trace the outcome of the reference. We are now given to understand that the Division Bench had declined to answer the reference by judgment dated 6/11/1993. 23. The learned ASGI submits that a Division Bench of this Court in Mathew Another v. Union of India (1999 (2) KLJ 824) has also accepted the dictum in Narasu Appa (supra) and, in these circumstances, no doubts can be entertained now about the acceptability of that dictum. The learned ASGI further points out that in Shri Krishna Singh v. Mathura ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Supreme Court in Shri Krishna Singh (supra) extracted above cannot be reckoned as ratio. In an appropriate case, we shall certainly want the matter to be decided by a larger Bench. 25. Be that as it may, we are of the opinion that this question need not be referred to a larger Bench in this case. We are not dealing with a piece of traditional personal law pure and simple. We are dealing with a piece of statutory law enacted by the Parliament. Sec.10A has been introduced into the Divorce Act by the legislative act of Parliament. Notwithstanding the fact that such statutory law amends the personal law, it will certainly have to satisfy Part III of the Constitution and will hence be open to challenge under Art.13. On this question, we find absolutely no doubt. If there be any doubt, the decision of the Full Bench of this Court in Mary Sonia Zachariah v. Union of India (1995 (1) KLT 644 (FB)) lays to rest all such doubts. After adverting to Narasu Appa (supra), the Full Bench has observed thus in para-39: 39. Another contention of the learned Central Government Pleader was that the impugned provisions in S.10 are codified forms of personal laws of Christians in India foun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es those that are grouped together from others. (2) The differential must have a rational relation to the object sought to be achieved by the law under challenge. There can be no dispute on this proposition of law. Classification is permissible and differential in classification can be justified only if the above two tests are simultaneously satisfied by the piece of law under challenge. It is also well settled that classification on the basis of religion in the matter of personal laws is justified. These general principles are not disputed. But the learned counsel argue that these tests are not satisfied in the instant case. 29. They argue that concept of divorce by mutual consent is unknown to the Christian personal law. It is not modification or amendment of an existing stipulation regarding divorce applicable to Christians. Sec.10A attempts to introduce the secular concept of divorce by mutual consent into the personal law. Christian, Hindu or Parsi religions had not permitted divorce by mutual consent under their traditional personal law. The concept is alien to all these religions identically. The secular concept of divorce by mutual consent had gained currency and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e dissolved by mutual consent already under their personal laws without the intervention of the court. Now the concept of divorce by mutual consent is applicable to all Indians. Having made it applicable to all Indians belonging to that group, it is not constitutionally right, just or fair to discriminate among the Christian members of the group/classification on the ground of their religion and to insist on a longer period of mandatory minimum separate residence so far as they are concerned. 31. We have first of all got to see what is the basis of the classification? The dominant rationale for classification, we must note is the anxiety and the yearning of the legislature, in response to popular demands, that the secular concept of divorce by mutual consent must be made available and applicable to the followers of all religions who want to take advantage of the same. They are people who may have got their marriages solemnized in accordance with their respective personal laws; but want such marriages to be dissolved on the ground of mutual consent. That is the dominant principle of classification. To such class of persons benefits have been extended by amendment and incorporatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in India. All Indians ideally will have to come under the umbrella of a uniform civil code which will contribute to the creation of national identity and character. Persons who have imbibed the core constitutional value of secularism and the constitutional dream of the polity having a uniform Indian civil laws are members of the classified group to whom this law is expected to cater. Sec.28 of the Special Marriage Act, Sec.13B of the Hindu Marriage Act, Sec.32B of the Parsi Marriage and Sec.10A of the Divorce Act are all attempts of the legislature to make the law of divorce by mutual consent applicable to this broad classification/group of individuals. The law classifies them into one group and makes the benefit of the concept of divorce by mutual consent, unknown to their respective traditional personal law, available to them. Due to pressure of obscurantist religious groups this could not evidently be introduced simultaneously by Parliament by enacting a law applicable to all in the group. Progressively one by one the benefit has been extended to the followers of all religions. When the legislature has perceived that the time is ripe to extend the benefit of the concept to a pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at it is unequal both according to political logic and constitutional law and is therefore violative of Article 14 . Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non-arbitrariness pervades Article 14 like a brooding omnipresence and the procedure contemplated by Article 21 must answer the test of reasonableness in order to be in conformity with Article 14. It must be right and just and fair and not arbitrary, fanciful or oppressive; otherwise, it would be no procedure at all and the requirement of Article 21 would not be satisfied . (emphasis supplied) 36. In this context it will be apposite to look at the rationale behind the stipulation of a period of mandatory minimum separate residence. The law and the system values and cherishes the institution of matrimony. The concept of marriage being sublime is accepted by the refined polity. Though the polity and State does not look at marriage as purely a divine sacrament it accepts marriage to be the most fundamental and sublime of all human institutions. Marriag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orce by mutual consent and having chosen to make that benefit available to members of all the communities within the group, later stipulation of a different more onerous period to one sub group alone on the basis of the unreasonable and irrelevant basis of religion does certainly, according to us, offend the mandate of right to life under Art.21 of the Constitution. That the discrimination manifests itself not in one common statute but in a separate statute applicable to the victims of discrimination is not relevant while considering the challenge against the unconstitutional discrimination. 38. It is argued by the learned ASGI with the help of the discussions in Parliament that the community had demanded the stipulation of different period considering the difference in the Christian approach to indissolubility of marriage. The learned counsel, on the contrary, argues that having decided to extend the concept of divorce by mutual consent to the members of the Christian community by introduction of Sec.10A of the Divorce Act, there is no basis whatsoever for the contention that they must alone wait for a longer period of minimum mandatory separate residence. The concept of indiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udicial review. But when the wisdom takes the concrete form of law the legislative provision will have to stand the test of Art.13 and if the legislative stipulation offends any fundamental right under Part- III of the Constitution Art.13 will come into operation and the offending provision will have to be declared to be void. 43. Having considered all the relevant circumstances, we are of the opinion that the stipulation of a higher period of two years of mandatory minimum separate residence for those to whom the Divorce Act applies, in contra-distinction to those similarly placed to whom Sec.13B of the Hindu Marriage Act, Sec.32B of the Parsi Marriage and Divorce Act and Sec.28 of the Special Marriage Act would apply, offends the mandate of equality and right to life under Arts.14 and 21 of the Constitution. 44. What is to be the consequent order is the next question. Applying the doctrine of severability as has been held in D.S. Nakara v. Union of India (1983 SC 130) we are satisfied that we will be well within the power of this Court to read down such an unconstitutional provision which is unrelated to the object sought to be achieved The stipulation of two years can be s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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