INDIRA RACHEL Vs. UNION OF INDIA

JUDGEMENT

(1.) HEARD Mr. V. Selvaraj, learned counsel for the petitioner, Mr. M. Ravindran, learned Additional Solicitor General for the first respondent and Mr. N.R. Chandran, learned Senior counsel appointed as amicus curiae in the present writ petition.

(2.) ORIGINALLY, the petitioner had prayed for declaration that Section 2, Section 10 and Section 11 of the Indian Divorce Act, 1869, hereinafter referred to as Act, should be declared as unconstitutional, void and of no effect. However, it is stated by the learned counsel for the parties that in the meantime, Sections 10 and 11 of The Divorce Act, 1869 have been amended and therefore, it is not necessary for us to consider the said aspect and the writ petition can be considered in so far as the validity of Section 2 of the Act is concerned.

(3.) THOUGH the provisions of the Act can be interpreted in a literal manner, to conclude that both parties must be domiciled in India at the time of presentation of the petition, in our considered view, to effectuate the present intention of the Act, which had come into force in the year 1869, possibly, when such contingencies were not in contemplation, a purposive interpretation can be given to make it reasonable and more consistent with the principles enshrined in the Constitution. If the aforesaid provision is construed to mean that a petition would be maintainable if at the time of presentation of the petition either party is domiciled in India, the difficulty projected by the petitioner would not arise and on the other hand, object can be achieved. Therefore, according to us, such provision should be interpreted to mean that the Courts in India shall be entitled to entertain petition for dissolution of marriage where either of the parties to the marriage is domiciled in India at the time when the petition is presented and such provision need not be construed as if both the parties must be domiciled in India at the time of presentation of the petition. In our considered view, such an interpretation would bring it in consonance with the philosophy of the Constitution. Moreover, we feel to suggest that in order to avoid any further controversy in the matter in different parts of the Country, the Ministry of Law, the first respondent, may consider the question of making suitable amendment to the provisions in so far as Section 2 of the Act is concerned in the light of other provisions, if any, containing similar laws relating to Divorce.