SRINIVASA AIYAR Vs. SARASWATHI AMMAL

JUDGEMENT

(1.) These eight petitions have been posted before us as they raise the important question of the validity of the Madras Hindu (Bigamy Prevention and Divorce) Act, 1949, Madras Act VI of 1949 (hereinafter called the Act). The Act came into force on the 29th March 1949 before the Constitution of India came into force. In five of the petitions, the marriages in question were performed before the Constitution came into force. Criminal R. C. Nos. 713 and 1431 Of 1950 relate to the same marriage and Criminal R. C. Nos. 506 and 1481 of 1950 and Criminal M. P. No. 157 of 1951 are petitions relating to marriages performed before the Constitution of India came into force. In Criminal R. C. No. 592 of 1951 and Criminal M. P. No. 223 and 1099 of 1951 the alleged marriages were after the Constitution of India came into force. In all these cases, criminal proceedings were initiated for an offence under Section 494 I. P. C. read with Section 4(2) of the Act. In some of the cases proceedings were taken for the abetment of the offences against the abettors. Under Section 494 I.P.C.,

(2.) Though reference was made in the course of the argument to Article 14 of the Constitution also, reliance on behalf of the petitioners who impugned the .validity of the Act was placed only on Articles 15 and 25. Under Article 15(1) the State is prohibited from discriminating against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. The contention strongly pressed before us was that the Act in question selected the Hindus for this kind of discriminatory legislation leaving the Muhammadans out of consideration altogether. While permitting the Mahomedans to continue under their personal law to marry more than one wife, the Act in the case of Hindus prohibits bigamy and makes it an offence. In support of this, the decision of the Pull Bench of this Court in what is known as the Communal G. O. case 'Champakam Dorairajan v. The State of Madras', 1950-2 MadLJ 404 was cited. The Communal G. O. was declared invalid by the Full Bench on the ground that it discriminated against citizens because of caste. The learned Chief Justice and Viswanatha Sastri J. considered the decisions which throw light in considering a question of this nature. The decision was affirmed by the Supreme Court in the 'State of Madras v. Champakam Dorairajan1, 1951 SCJ 313 though the Supreme Court rested its decision only on Article 29(2) and did not express any opinion on Article 15. Prima facie, the argument advanced on behalf of the petitioners seems to be attractive and lends support to the view that discrimination was made between Hindus and Mohamedans on this question of the right to marry more than one wife. But the point for consideration is, does discrimination proceed on the ground of religion? It is common knowledge that from early times when the British acquired the administration over this country, the personal law was applied in the case of Hindus and similarly in the case of Mohamedans also, their personal law was applied in certain matters. It is unnecessary to subject these provisions of the Statutes bearing on this question to a detailed examination as the learned Advocate General has done in the course of his argument as the proposition cannot be contested. Article 14 of the Constitution is a general article guaranteeing to a person that a State shall not deny him equality before the law or the equal protection of the laws. As a corollary to this, we have Articles 15 and 16 which prohibit discrimination on the ground of religion, race, caste, sex, place of birth in the case of citizens. It is no doubt true that the decisions have established that Article 14 does not prevent classification based on reasonable ground for specified objects. The principles which should govern, the application of Article 14 have been laid down and summarised by Fazl Ali J. in the Bombay Prohibition case, the 'State of Bombay v. Baisara', 1951 SCJ 478 at 491 in the form of propositions. The learned Judge also cited with approval the passage from Prof. Willis' book dealing with the fourteenth amendment to of the Constitution of the United States in which the learned author summed up the law relating to the guarantee of equal protection of laws under the Constitution of the United States. The application therefore of that article in view of the clarification made by the Supreme Court does not present any difficulty. As pointed out by Fazl Ali J. the classification is bound to produce some inequality to a certain degree but that would not be enough to invalidate a law so long as the law deals equally within the members of a well denned class. The classification which is permissible however should not be based upon unreal and unsubstantial grounds and should not be arbitrary and without any substantial basis. If the statute however prohibits classification on a particular basis as do Articles 15 and 16 of the Constitution, the law cannot be Justified on the ground that notwithstanding that it contravenes the prohibition it is valid on the ground that it attempts at a reasonable classification based upon real, substantial and reasonable grounds.

(3.) Bearing these principles in 'mind, the contention that the Impugned legislation infringes the rights recognised under Article 15 as it is based on discrimination of religion and religion only, may now be examined. "Marriage and divorce, infants and minors, adoption" are in the Concurrent Legislative List. List III of Schedule 7 of the Government of India Act, 1935 item 6, and item 7 relates to "Wills, intestacy and succession". Under the present Constitution, the Concurrent List, List III item 5 relates to Marriage and Divorce; infants and minors; adoption; Wills, intestacy and succession; joint family and partition; all matters in respect of which parties in judicial proceedings were immediately before the commencement of this Constitution subject to their personal law. Legislative power therefore is conferred by these Articles (items?) to enact la*s, amend or alter or repeal parts or whole of the personal law as is clear from the fact that adoption, joint family and partition are matters peculiar to Hindu Law a.nd do not relate to any other law. Prima facie therefore the legislative power of the State Legislatures legitimately extends to affect the personal law of the Hindus. That does not however mean that this legislative power could abrogate the fundamental rights in Part HI of the Constitution. But it is surely an indication that it recognises the classification already in existence that a section of the people, viz., the Hindus are subject to a system of law peculiar to them. The essence of that classification is not their religion but that they have all along been preserving their personal law peculiar to themselves which was derived from the gmritis, commentaries, custom and usage, in the same manner in which the Mohamedans are subject to their personal Jaw. It is that personal law that was now sought to be affected by the Act to the extent of modifying and abrogating the rule that a Hindu is entitled to marry any number of wives without restriction; in other words of abolition of polygamy. The argument of the learned Advocate General therefore that the Act does not offend on the ground of discrimination based on religion seems to be sound. It is unnecessary to consider how far and to what extent polygamy was permitted under Hindu law and whether it is an absolute or unrestricted right or was only a limited right; nor is it necessary to go into the more difficult question whether the expression "all laws in force" in Article 13(1) of the Constitution includes personal law or not lor even assuming that it does, the Act does not offend in our opinion. Article 15. If the argument of the petitioners were to be accepted, most of the personal law of the Hindus may have to go as there are fundamental differences on various matters between the personal law of the Hindus and the personal law of the Mohamedans. The petitioners' learned advocate however did not go to that length in the course of the arguments before us. It is a classification of persons which existed from a long time not based solely on the ground of religion but based on considerations peculiar to each of the communities; Hindus and Mohamedans. Hindu law, as is well known, had a peculiar growth and was to a large extent modified by legislation and also by judicial decisions during the British period and it is therefore difficult to accept the contention that the law applicable to Hindus is a law which discriminates against citizens on the ground 'only' of their religion.