P E MATHEW Vs. UNION OF INDIA

JUDGEMENT

(1.) These two Original Petitions raise the same question with regard to the validity of Section 17 of the Indian Divorce Act, 1986 (hereinafter referred to as 'the Act') which says that a decree for dissolution of marriage passed by a District Judge has to be confirmed by a three-Judge Bench of the High Court. According to the petitioners, this confirmation is required only for Christians and so it is discriminatory, arbitrary and violative of Articles 13(1), 14, 15(1) and 21 of the Constitution of India. It is further submitted that since this section is to consistent with Part III of the Constitution, it violates Article 13(1) which says that all pre-Constitutional laws have to be consistent with Part III of the Constitution. The other grounds of attack are as under:(a) The section is applicable only to Christians and, therefore, it amounts to a discrimination based on religion and so is violative of Article 15(1) of the Constitution of India;(b) The Section is also violative of Article 21 of the Constitution because even if the husband and wife are not interested in further approaching any Court after the decree by the District Judge, they have to wait minimum for another six months for confirmation, which further delays their right to have a new married life; and(c) It also leads to additional expenses and agony to the parties since the Section in question interferes and adversely affects the fundamental rights of the parties guaranteed under Article 21 of the Constitution to have a decent living.

(2.) It is further submitted that a decree for dissolution of marriage among Hindus, Budhists, Sikhs and Jains under the Hindu Marriage Act, 1955, among the Parsis under the Parsi Marriage and Divorce Act, 1936 and among the Muslims under the Dissolution of Muslim Marriages Act, 1939 are made by the District Courts and under the last mentioned Act even by Courts of lower rank and all such decrees operate with the fullest efficacy without any confirmation from the High Court. Section 17 of the Act only result in protracting and prolonging the litigation even where none of the parties is interested to have a further review or reconsideration of their case by any higher Court.

(3.) The Union of India filed a counter affidavit. According to them:(a) Article 44 of the Constitution itself recognises separate and distinctive Personal Laws;(b) What is contained in Section 17 of the Act is a special procedure in dealing with decree for dissolution of marriages among Christians and it cannot be said that the Legislature was discriminating against the Christians only on the ground of religion;(c) It is clearly for the Legislature to lay down its policies, State of Bombay v. Narasu Appa Mali, AIR 1952 Bombay 84 : (1952 Cri LJ 354).(d) Section 17 of the Act embodies a procedure in accordance with the Legislative policy and the said provision of Law has withstood the test of time and judicial scrutiny. According to them, Section 17 of the Act does not create an unreasonable differentiation, T.M. Bashiam v. M. Victor, AIR 1970 Madras 12. Further, if a particular petitioner requires a trial on original side of the High Court in a suitable case, he can approach the High Court by invoking the provisions of Section 8 of the Act;(e) The subject-matter of the Act falls under Entry 5 of the Concurrent List in the Seventh Schedule to the Constitution and every State Legislature, subject to the provisions of Article 254 of the Constitution, is competent to carry out amendments to the Act if the local situation obtaining in the particular State necessitates such amendment and that the Government of Kerala can also bring in amendments on the lines of the Uttar Pradesh Amendment if the State Government considers it necessary or expedient. It is pertinent to notice that the State of Uttar Pradesh has done away with Section 17 of the Act by a State Amendment Act being Act 30 of 1957;(f) Section 17 of the Act embodies the procedure required to be followed. It contains the Legislative policy and the same is legal and valid; and (g) The Legislature is to lay down the policy which the State should pursue and making law or amendments is a function to be performed by the Legislature. The remedy does not lie with the Courts, Ahmedabad Women Action Group v. Union of India, (1997) 3 JT (SC) 171 : (AIR 1997 SC 3614).