REYNOLD RAJAMANI Vs. UNION OF INDIA
SUPREME COURT OF INDIA (FROM: DELHI)
UNION OF INDIA
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(1.) ):- The appellants, who belong to the Roman Catholic Community, were married on December 30, 1967 in Podannur in the State of Tamil Nadu under S. 27 of the Indian Christian Marriage Act, 1872. On July 26, 1979 they put in a joint petition under Section 28 of the Special Marriage Act for a decree of divorce by mutual consent in the Court of the learned District Judge, Delhi. On March 11, 1980 the trial Court dismissed the petition on the ground that Section 28 of the Special Marriage Act could not be availed of. The appellants filed a writ petition in the High Court of Delhi which having been dismissed they proceeded in appeal to this Court. In the appeal they applied for permission to amend the joint petition to enable them to rely upon Sec. 7 of the Indian Divorce Act, 1869 read with Section 1 (2) (d) of the Matrimonial Causes Act, 1973 of England. The amendment was allowed, and the appellants filed an amended joint petition in the trial Court seeking divorce on the ground' that they had been living separately for more than two years and had not been able to live together and their marriage had broken down irretrievably and therefore they were entitled to a decree of divorce under the aforesaid provisions. On August. 16, 1980 the trial Court dismissed the .petition holding that the appellants were not entitled to rely on Section 1 (2) (d) of the English statute. The appellants took the matter to the High Court of Delhi and the High Court has affirmed the view taken by the trial Court.
(2.) In this appeal Miss Lily Thomas, appearing for the appellants, contends that the trial Court and the High Court art wrong and that in reading Section 7 of the Indian Divorce Act, 1869 the provisions of S. 1 (2) (d) of the Matrimonial Causes Act, 1973 must be deemed to be incorporated therein and therefore the appellants are entitled to the benefit of the ground for divorce so forth in the latter enactment. In deference to Miss Thomas's vehement submissions and having regard to the importance of the question we heard her at length but we indicated that the point raised by her did not carry conviction, and we reserved judgment in order to give a fully reasoned order. Shortly thereafter, Miss Thomas put in an application asserting that she had information that the Government of India was proposing to amend the matrimonial law in relation to the Christian community in India and praying that in the circumstances judgment may not be delivered for some time. There has, however, been no change in the law since, and it is appropriate, we think, that judgment should be pronounced now without further delay.
(3.) The main contention raised by Miss Thomas is that the appellants are entitled to the benefit of S.7 of The Indian Divorce Act and therefore, by reason of that provision, to rely on Section 1 (2) (d) of the Matrimonial Causes Act, 1973. There is no doubt that if the provisions of Section 1 (2) (d) of the English statute can be read in Section 7 of the Indian Divorce Act and the appellants can establish that the conditions set forth in Section 1 (2) (d) are made out the appellants will be entitled to claim a decree of divorce. But we are not satisfied that Section 1 (2) (d) of the English statute can be read in S. 7 of the Indian Divorce Act. Sub-sections (1) and (2) of Section I of the Matrimonial Causes Act, 1973 provides :
"(1) Subject to Section 3 below, a petition for divorce may be presented to the Court by either party to a marriage on the ground that the marriage has broken down irretrievably.
(2) The Court bearing a petition for divorce shall not hold the marriage to have broken down irretrievably unless the petitioner satisfies the Court of one or more of the following facts, that is, to say
(a) that the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent;
(b) that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent;
(c) that the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition;
(d) that the parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition (hereafter in this Act referred to as "two years' separation") and the respondent consents to a decree being granted;
(e) that the parties to the marriage have lived apart for a continuous period of at least five years immediately preceding the presentation of the petition (hereafter in this Act referred to as "five years' separation")".
The circumstances set forth in sub-section (2) of Section 1 constitute the basis for holding that the marriage has broken down irretrievably. Can these provisions be deemed incorporated in Section 7 of the Indian Divorce Act Section 7 provides :-
"7. Subject to the provisions contained in this Act, the High Courts and District Courts shall, in all suits and proceedings hereunder, act and give relief on principles and rules which, in the opinion of the said Courts, are as nearly as may be conformable to the principles and rules on which the Court for Divorce and Matrimonial Causes in England for the time being acts and gives relief :
Provided that nothing in this section shall deprive the said Courts of jurisdiction in a case where the parties to a marriage professed the Christian religion at the time of the occurrence of the facts on which the claim to relief in founded."
The section requires that in all suits of proceedings under the Indian Divorce Act the High Court and District Courts shall "act and give relief on principles and rules" which conform as nearly as may be to the principles and rules on which the Court for Divorce and Matrimonial Causes of England acts and gives relief. What is contemplated is the manner in which the Court will exercise its jurisdiction for the purpose of disposing of a pending suit or proceeding. The expression "principles and rules" does not mean the grounds on which a suit or proceeding may be instituted. The grounds are ordinarily pleaded in the suit or proceeding when the petitioner comes to Court and invokes its jurisdiction. It is after the suit or proceeding is entertained that the question arises of deciding on the norms to be applied by the Court for the purpose of disposing of it. If it were otherwise, plainly there would be a conflict with Section 10 of the Indian Divorce Act. For Section 10 sets forth the limited grounds on which a petition may be presented by a husband or wife for dissolution of the marriage.;
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