YOUTH WELFARE FEDERATION Vs. UNION OF INDIA

JUDGEMENT

(1.) Questions of deep significance, some of which in many respects are perplexing in nature have been referred to this Bench in the context of consideration of the vires of Sections 10 and 22 of the Indian Divorce Act, 1869 (hereinafter referred to as "the Act.").

(2.) WP. No. 9717 of 1983 was filed as public interest litigation raising the question of vires of the Sections. During the hearing of the case the learned single Judge felt the matter should be appropriately heard by a Division Bench as "this case raises very important questions touching the personal law of me Christians as contained in the Indian Divorce Act." The learned Judge also felt that it is appropriate for the Court to hear representations of organisations of the Christian community including of women which should be vitally interested in the matter. Notices were issued to seven organisations whose names were ascertained from the Bar and permission was also allowed to any other person, organisation or institution to intervene in the matter either for or against the contentions raised in the writ petition. In pursuance of the direction a press-note was issued by the Registrar of the High Court Seven Christian organisations in Andhra Pradesh, the Andhra Pradesh High Court Women Lawyers Association and two individuals filed intervention applications. When tine case along with another Writ Petition No. 8160 of 1984 which has since been dismissed as not pressed came up for hearing, representation was made by the learned Counsel Smt. Jayasree Sarathy that certain other organisations and individuals were to file separate writ petitions. Writ Petition Nos. 5106, 5585 and 5702 of 1994 were filed by two individuals and young Women Christian Association respectively questioning the validity of Sections 10, 17, 22 and 55 of the Act. Even so, at the time of hearing the learned Counsel confined the challenge only to Sections 10 and 22 of the Act. The Division Bench before which the matter came, besides hearing the learned Counsel appearing, also obtained the services of Sri K.G. Kannabhiran, Senior Advocate to argue the case as amicus curiae. After detailed hearing the Bench however felt the cases as projecting substantial questions deserving considerations by a Full Bench for which it made the present reference. The considerations that weighed with the Division Bench were whether the vires of any personal law is available to be tested on the anvil of Part HI of the Constitution of India and whether those could be treated as laws in force and as to the effect of the adoption of the Universal Declaration of Human rights and the two International Covenants by the Union of India on 10-4-1979. The four questions framed by the Division Bench were as follows:

(3.) Mr. V.L.N.G.K. Murthy who has advanced the main submissions, and I must say with great clarity, analysis and erudition, has confined the attack only to Section 10 of the Act as providing for gender discrimination by requiring the wife to establish far more difficult and onerous grounds to obtain divorce than the husband who becomes entitled to divorce if he only proves the wife to have been guilty of adultery. He has also urged the Section to be violative of Article 21 as the wife is, as the effect of the provisions, compelled to lead a life of drudgery and continuous oppression of being tied to the bond of marriage even where the marriage has, without a chance of any repair, unmistakably lapsed into a coma and an euthanasia of it would be the more healthy operation. The Act was enacted more than 125 years back which has been left unamended ever since then even though great strides have been made in the context of emancipation and liberation of women, even though the law in England, on which the statute was based, has itself undergone vast improvements. Questions have been urged on the basis of Article 13(1) of the Constitution of India that because of the discrimination practised by the statute it became void on the introduction of the Constitution. The provisions of Section 22 of the Act have also been challenged as ultra vires of Article 21 of the Constitution on the same grounds. Mrs Jayasree Sarathy has also laid attack on Section 22 of the Act and Mr. C.P. Sarathy, learned counsel appearing in W.P. No. 5106 of 1994 has addressed in a general way. Mr. K.G. Kannabhiran has also rendered able assistance to the Court of which grateful acknowledgment was also recorded by the Division Bench. Argument has also been advanced that because of India being a party to the Universal Declaration of Human Rights and it having adopted the Covenants on 10-4-1979, the provisions of the statute are to be so interpreted as to further the objective and purpose of the declaration and covenants which should be the approach of the Courts. Counter arguments have been advanced that personal laws are outside the ambit of Part III of the Constitution and hence are unaffected by Articles 14, 15 and 21 of the Constitution.