BISHNU CHARAN MOHANTY Vs. UNION OF INDIA

JUDGEMENT

(1.) A Hindu husband, who is a citizen of India, makes a grievance that though he has no choice insofar as application of Section 125, Cr. P.C. dealing with grant of maintenance, inter alia, to divorced wives is concerned, his counterpart, if he be a Muslim, has option because of what has been provided in Section 5 of the Muslim Women's (Protection of Rights on Divorce) Act, 1986 (hereinafter, "the Act"), and so, he is being discriminated against solely on the ground of religion which violates the mandate of Article 15(1) of the Constitution. The prayer, therefore, is that Section 5 of the Act should be struck down.

(2.) Article 15 is a facet of equality promised by Article 14 and to see that equality prevails, Article 15 prohibits discrimination on ground of religion, race, caste, sex or place of birth by stating that the State shall not discriminate against any citizen only on these grounds. To put it differently, Article 14 guarantees the general right of equality; and Articles 15 and 16 are instances of the same right in favour of citizens in some special circumstances, as observed by a Constitution Bench in Gazula Dasarath v. State of Andhra Pradesh, AIR 1961 SC 564. The three provisions namely, Articles 14, 15 and 16 form part of the same constitutional code of guarantees and supplement each other vide General Manager v. Rangachari, AIR 1962 SC 36.

(3.) The two requirements to attract Article 15(1) are : (1) there should be no discrimination; and (2) that too, only on ground, inter alia, of religion. We have, therefore, to see as to what is the purport of the word "discrimination". Patanjali Sastri, C. J., presiding over a Constitution Bench explained the meaning of "discrimination" in Kathirening v. State of Saurashtra, AIR 1952 SC 123, in paragraph 7 by stating that the expression "discriminate against" means according to the Oxford Dictionary "to make an adverse distinction with regard to; to distinguish unfavourably from others". After having said so, the learned Chief Justice stated that "discrimination" thus involves "an element of unfavourable bias". It was thereafter observed that if such bias is disclosed and is based on any of the grounds mentioned inter alia, in Article 15, it may well be that the statute will without more incur condemnation as violating a specific constitutional provision unless it is saved by one or other provisos to the Article.