SREPHEN JOSHUS Vs. J D KAPOOR

JUDGEMENT

(1.) The petitioners are Indian Christians and were married to each other on 25th August, 1973 under the provisions of the Indian Christian Marriage Act, 1872. A joint petition was preferred by them under Section 28 of the Special Marriage Act, 1954 (hereinafter referred to as 'the Act') seeking the dissolution of marriage by a decree of divorce by mutual consent. Petition was dismissed on 5.10.1991 by Shri J.D. Kapur, Additional District Judge, Delhi. One of the grounds for dismissal was that the marriage was solemnised under the Christian Marriage Act whereas divorce had been sought under the Special Marriage Act, therefore, the petition was not maintainable. Petitioners have questioned the decision in this petition filed under Article 227 of the Constitution of India and under Section 39 of the Act.

(2.) I have heard the learned counsel for the petitioners.

(3.) The contention of the learned counsel for the petitioners has been that Special Marriage Act, 1954 is a piece of legislation, which applies equally to all citizens of India, therefore, irrespective of the fact that the marriage was solemnised under some other provisions of law, section 28 thereof does not create any bar for obtaining a decree of divorce by mutual consent. It is contended that on harmonious construction of all the statutes dealing with the personal religious law of marriage and divorce, in the light of the provisions of the Special Marriage Act, there cannot be any bar for the persons, to whom the provisions of the Special Marriage Act, 1954 apply, to take recourse under the provisions of the Act for seeking divorce by mutual consent. Reliance was placed by the learned counsel for the petitioners on a decision of a single Judge of the High Court of Rajasthan in Chistopher Andrew Neelakantan v. Mrs. Anne Neelakantan (AIR 1959 Rajasthan 133).