MARY SONIA ZACHARIAH Vs. UNION OF INDIA

JUDGEMENT

(1.) THE constitutional validity -of S.10 of the Indian Divorce Act, 1869 (for short "the act" ) which regulated divorce among Christians in India for a century and a quarter is directly under challenge in the two Original Petitions at the instance of two Christian women on me ground that the provisions in S.10 are violative of the fundamental rights guaranteed to them and other similarly situated Christian women under Arts.14,15 and 21 of the Constitution of India.

(2.) MARY Sorua Zachariah, petitionerin O.P. No. 5805 of 1988 is a Syrian Christian governed by the Act. At the time of filing the O.P. she was aged 36 and was working as an Asst. Warden at Corpus Christi School, Kottayam. She was married to one P.C. Zachariah on 6 -1 -1972 at Emmanuel Marthoma Church, Pazhanni, Thrissur according to the customary rites and ceremonies of the church. A daughter, Elizabeth Zachariah @ Kittu was born out of the said wedlock on 16 -9 -1974. On the basis of Exts. P3 and P4 letters the petitioner has specifically pleaded that her husband has taken an irreversible decision to live with an English lady whom he met while in Nairobi where he was employed from 1977 onwards, deserting the petitioner and her child once and for all. Petitioner has specifically alleged that from 1978 onwards her husband has deserted her and has not cared to cohabit with her or to perform any of the marital obligations and to maintain her and her daughter. She has further alleged in the petition that she is not even aware of the whereabouts of her husband at present.

(3.) AMMINI E.J., petitioner in O.P.No. 4319 of 1991 is also a Christian governed by the Act. At the time of filing the O.P. the petitioner was aged 39 and was working as a High School Assistant at the Government High School, Pattambi. She was married to the third respondent on 14 -2 -1980 at St Peter St. Paul Church, Amaravathy, Kochi, according to the rites, ceremonies and customs of the said church. According to the petitioner they lived together as husband and wife till 18 -7 -1981 and thereafter the third respondent has deserted her with the intention of abandoning her permanently against her wish. It is her further case that during the period they lived together as husband and wife, the third respondent's conduct towards the petitioner was very cruel and he had subjected the petitioner to insults, abuses and accusations of adulterous conduct even in the presence of public, her colleagues, students and relatives. She has alleged that the desertion, insults, abuses and accusations of adulterous conduct and threats of physical violence had made the continuance of the married life impossible. Before filing of this O.P., petitioner has filed O.P.No.153 of 1985 before the District Court, Thrissur under S.22 of the Act for a decree of judicial separation on the ground of cruelty and desertion of the third respondent. As per Ext. P1 judgment in O.P.No. 15 3 of 1985 dated 28 -7 -1988, the Addl. District Judge has specifically found that the third respondent is guilty of cruelty and desertion and has granted a decree for judicial separation as prayed for. Petitioner has alleged that in spite of the lapse of more than two' years there has not been resumption of cohabitation and there is not even an iota of chance for reconciliation. Petitioner has further alleged that even though there is no chance of reconciliation, it may not be possible for her to get a divorce since desertion and cruelty are not recognised as grounds for divorce unless adultery is also alleged and proved by her. It is in the circumstances that the petitioner has also challenged the constitutional validity of S.10 of the Act.