JORDEN DIENGDEH Vs. S S CHOPRA

JUDGEMENT

(1.) 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 throughout the territory 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 Begum (1985 Cri LJ 875):

(2.) 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 Shillong. She is now a member of the Indian Foreign Service. The husband is a Sikh. They were married under the Indian Christian 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 22 of the Indian Divorce Act, 1869. The prayer for declaration of 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 capable of achieving 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 breakdown of marriage is a ground for divorce, under the Indian Divorce Act. Section 10 of 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 -

(3.) The provisions of the Divorce Act may now be compared with the provisions of other enactments and laws which provide for 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 contravenes anyone of the conditions specified in clauses (i), 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 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 -