GOGIREDDY SAMBIREDDY Vs. GOGIREDDY JAYAMMA

JUDGEMENT

(1.) A Hindu wife aggrieved by her husbands conduct in marrying a second wife laid a complaint against him for an offence under Section 494, I. P. C. , read with Sections 11 and 17 of the Hindu Marriage Act, 1955. In this application under Section 561-A, Criminal P. C. the husband seeks to have the proceedings against him quashed on the ground that Sections 11 and 17 of the Hindu Marriage Act are ultra virus and unconstitutional as they offend Article 15 (1) of the Constitution. We may at once state that though the Act has been on the statute book for fifteen years no one thought worth while all these years to challenge the virus of these provisions either in this court or elsewhere. It has not fallen to this petitioner to question the virus of these provisions.

(2.) Sri P. A. Chowdary, learned counsel for the petitioner, argued that while the personal law of the Hindus prior to 1955 and the personal law of the Muslims always permitted polygamy, the Hindu Marriage Act made the Hindu marriage monogamous while the Muslim marriage was left untouched. The effect of making the Hindu marriage monogamous was that it exposed Hindus to Section 494, I. P. C. while Muslims continued unexposed. A statute which so exposed Hindus to a prosecution under Section 494, I. P. C. to which they would not be so exposed if they are Muslims, was a statute which discriminated against Hindus on the ground of their religion only and, therefore, offended Article 15 (1) of the Constitution. Sri Chowdary urged that a provision which made the same act an offence if committed by a Hindu but not so if committed by a Muslim was patently discriminatory on the ground of religion only. He contended that a criminal law, unlike personal law, must be uniform and that it was not permissible to have one criminal law for the Hindus and another criminal law for the Muslims. He contended that it was permissible to amend personal laws but submitted that it was not open to the Legislature under the guise of amending one of the several personal laws prevailing in the land, to subject the persons governed by that personal law to a penal law without at the same time subjecting others governed by other personal laws to the same penal law. He further urged that a law which made an act an offence if committed by a person subject to a particular personal law but not by others hurt the unity ad integrity of the nation and was destructive of the secular character of the State. He draw our attention to Article 44 of the Constitution which prescribes that the State shall endeavour to secure for the citizens a uniform Civil Code throughout the territory of India.

(3.) To understand and consider the submissions made by the learned counsel, it will be useful if we refer to the relevant constitutional and statutory provisions and their extent and scope. Article 14 of the Constitution assures to all persons equality before the law and equal protection of the laws. It is now well settled that while Article 14 forbids class legislation, it does not forbid a reasonable classification for the purposes of legislation, provided that the classification is founded on an intelligible differentia and that differentia has a rational relation to the object of the statute. The classifications may be founded on different bases such as geographical, historical, occupational or the like. It may even be based on religion. See for instance the case of Moti Das v. S. P. Sahi (AIR 1959 Sc942) where it was held that the exclusion of Sikh religious trusts from the applicability of the Bihar Hindu religious Trusts Act did not offend Article 14 of the Constitution as the organisation of Sikh religious trusts was essentially different from the organisation of Hindu Religious trusts and the Legislature apparently thought that Sikh religious trusts did not require the same protections as Hindu Religious trusts. On the same analogy it must be held the Legislature may determine which religious community is ready for social reform and make laws accordingly.