Holding

The Supreme Court held that the existing personal laws are non‑uniform and do not permit divorce on the basis of irretrievable breakdown or mutual consent, necessitating legislative enactment of a Uniform Civil Code.

Summary

The wife, a Christian from the Khasi tribe and an Indian Foreign Service officer, married a Sikh husband under the Indian Christian Marriage Act, 1872. She filed a petition under the Indian Divorce Act, 1869 seeking a declaration of nullity or judicial separation on the ground of her husband's impotence. The Delhi High Court denied nullity but granted judicial separation on cruelty, a decision affirmed by the Division Bench. On special leave, the Supreme Court examined the lack of uniformity among personal laws—comparing the Indian Divorce Act with the Hindu Marriage Act, Special Marriage Act, Parsi Marriage and Divorce Act, and Muslim law—highlighting that none provide for divorce on the basis of irretrievable breakdown or mutual consent. The Court held that the marriage was irretrievably broken down and that existing statutes leave the parties trapped, urging legislative action to enact a Uniform Civil Code incorporating such grounds. The petition was dismissed, with the Court directing its observations to the Ministry of Law and Justice.

Issues considered

The adequacy of the Indian Divorce Act, 1869 in providing relief for a marriage broken down irretrievably on grounds of impotence or cruelty.
Whether the existing personal laws (Christian, Hindu, Special Marriage, Parsi, Muslim) provide uniform grounds for nullity, divorce, or judicial separation.
The need for a Uniform Civil Code under Article 44 of the Constitution to address gaps in marriage and divorce law.

Legislation cited

Code of Criminal Procedure, 1973s. 125
Constitution of Indias. Article 44
Dissolution of Muslim Marriages Act, 1939
Hindu Marriage Act, 1955s. 10, s. 11, s. 12, s. 13, s. 13A, s. 13B
Indian Christian Marriage Act, 1872
Indian Contract Act, 1872
Indian Divorce Act, 1869s. 18, s. 19, s. 22
Indian Penal Code, 1860
Parsi Marriage and Divorce Act, 1936s. 30, s. 31, s. 32, s. 34
Special Marriage Act, 1954s. 23, s. 24, s. 25, s. 27, s. 27(2), s. 27IA, s. 28

Subjects

Uniform Civil Codemarriage dissolutionjudicial separationnullity of marriagepersonal lawirretrievable breakdownIndian Divorce ActHindu Marriage ActSpecial Marriage ActParsi Marriage ActMuslim lawArticle 44legislative reform

Judgment

1-04

MS. JORDAN DIENGDEH
A
••
S.S, CHOPRA
B May 10, 1~85

(0. CHJI'iNAPPA REDDY AND R.B. MISRA, JJ J

Conslitulion of !ndia-Articlt 44-Uniform Civil Ct>de-Necessity a/-
c Emphasised.

Indian Divurce Act, 1869-Ss. 18, 19 and 22-Petition fJy wife-A/legation
of impCftence of husband-1Vullity of marriage or judicial separation sought-
High Court rl!jecting prayer for nullity, but granting judicial Jeparation on
account af cruelty-Validily of order-Supreme Court holding irrelrievable
break-down of marriage.
D
Hindu Marriage Act, 1955 SJ. IO and 13B-Sptcial Marriage Act, 1954-
SJ. 23 to 28-Parsi Marriage and Di'Porce Act, 1936-Ss. 31 to 34-Dissolution
of Muslim Marriage Act, 1939-S. 2-GrJunds for dissolution of marriage not
uniform--Necessily for uniform Cirii Code-Stressed.

E The petitioner belonged to the •K.basi Tribe' of Maghalaya and was
born and brought up as a Presbytarian Christian. She is now a n1ember of
the Indian Foreign Service. The respondent-husband is a Sikh. They were
married under the lndian Christian Marriage Act 1872. The petitioner filed
a petition in 19&0, for declaration of nultity of marriage or judicial separation
under ss. 18, 1'::1and22 of the Indian Divorce Act, 1869, on the ground of the
impotence of her husband.
F
A Single Judge of the High Court rejected the prayer for declaration of
nullity of marriage, but granted a decree for judicial separation on the ground
of cruelty. Division Bench affirmed the decision of the Single Judge on
appeaJ.

G In the speCiJll leave petition filed by wife,

HELD : (1) A comparison of the relevant provisions of the Christian '
Marriage Act 1872, Hindu Marriage Act 1955, Srecial Marriage Act 1954, ""'
Parsi Marriage and Divorce Act 1936, Dissolution of Muslim Marriage Act~
1939, show that the law relating to judicial separation. divorce and nullity of
H marriage is far, far fro1n uniform. [717 BJ

(2) Under the Hindu Marriage Act, a decree for the judicial separation
may be followed by a decree for the dissolution of marriage on the lapse of
J. DIENGDEH \", S.S. CHOPRA (Chinnappa Reddy, J.) 705

one year or upwards from date of the passing of a decree for judicial separa~
tion, if meanwhile there has been no resumption of cohabitation. There is no
corresponding provision under the Indian Divorce Act and a person obtaining
a decree for judicial separation will have to remain content with that decree
and cannot seek to follow it up with a decree or divoece, after the lapse of any
period of time. 1711 B-C]

(3) In the instant case, the marriage appears to have broken down
irretrievably. If the findings of the High Court stand, there is no way out for 8
the couple. They will continue to be tied to each other since neither mutual
consent nor irretrievably break~down of marriage is a ground for divorce,
under the Indian Divorce Act. There is no point or purpose to be served by
the continuance or a marriage which has so completely and signally broken
down. The parties are bound together by a marital tic which is better
untied. (717 B-C] c
(4) Time has now come for the intervention of the legislature to
provide For a uniForm code or marriage and divorce as envisaged by Article 44
and to provide by law for a way out of the unhappy situations in which
couples find themselves in. It is necessary to introduce irretrievably Preak-
down of marriage, and mutual consent as grounds of divoree in all cases.
[717 C.D] D
CIVIL APPELLATE JUKISOICTION : Special Leave Petition (Civil)
No. 2047 of 1985.

From the Judgment and Order dated 29.2.1984 of the Delhi
High Court in F.A.O. (O.S.) No. 28 of 1982.
B

Mohinder Narian, S.S. Jauhar and Ms. Zubeda Begum for the
Petitioner.

The Order of the Court was delivered by F
CHINNAPPA REDDY, J. It was just the other day that a
Constitution Bench of this Court had to emphasise the urgency of
infusing life into Art. 44 of the Constitution which provides that
"The State shall endeavour to secure for the citizens a uniform civil
code through out the terriotory of India." The present case is yet G
another which focusses attention on the immediate and compulsive
need for a uniform civil code. The totally unsatisfactory state of
affairs consequent on the lack of a uniform civil code is exposed by
the facts of the present case. Before mentioning the facts of the
case, we might as well refer to the observations of Chandrachud,
ff
C.J., in the recent case decided by the Constitution Bench (Mohd
Ahmed Khan v. Shah Bano Beirum & Ors.)
706 SUPREMB COURT REPORTS [1985) SUPPL. s.c.R.

"There is no evidence of any official activity for
A framing a common civil code for the country... .. .. A •
common Civil Code will help the case of national integra-
tion by removing disparate loyalties to laws which have
conflicting ideologies. No community is likely to bell the
cat by making gratuitous concessions on this issue. It is
the State which is charged with the duty of securing a
8
uniform civil code for the citizens of the country and,
unquestionably, it has the legislative competence to do so.
A counsel in the case whispered, somewhat audibly, that
legislative competence is one thing, the political courage
to use that competence is quite another. We understand
c the difficulties involved in bringing persons of different
faiths and persuasions on a common platform. But, a
beginning has to be made if the Constitution is to have
any meaning. Inevitably, the role of the reformer bas to
be assumed by the courts because, it is beyond the
endurance of sensitive minds to allow injustice to be
D
suffered when it is so palpable. But piecemeal attempts
of courts to bridge the gap between personal laws cannot
take the place of a common civil code. Justice to all is
a far more satisfactory way of dispensing justice from
case to case."
E
The facts of the case are somewhat novel and peculiar. The
wife, who is the petitioner before us claims to belong to the 'Khasi
Tribe' of Meghalaya, who was born and brought up as a Presby·
tarian Christian at Shillong. She is now a member of the Indian
F Foreign Service. The husband is a Sikh. They were married under
the Indian Christain Marriage Act, 1872. The marriage was perfor-
med on October 14, 1975. The present petition for declaration of
nullity of marriage or judicial separation was filed in 1980 under
sections 18, 19 and 20 of the Indian Divorce Act, 1869. The prayer
for declaration no nullity of marriage was rejected by a learned single
G judge of the High Court, but a . decree for judicial separation was
granted on the ground of cruelty. On appeal, a Division Bench of
the High Court affirmed the judg.nent of the learned single judge.
The wife has filed this petition for special leave to appeal against the
judgment of the High Court. She seeks a declaration of nullity of
H
m 1rriage. The ground on which the declaration was sought in the
courts below and the ground on which it is now sought is the
impotence of the ]\usband in that though the husband is of achievini
J. DIENGDEH v. s.s. CHOPRA (Chinnappa Reddy, J.) 707

erection and penetration, he ejaculates prematurely before the wife
has an orgasm, leaving the wife totally unsatisfied and frustrated. A
At this stage, we are not concerned with the question how far the
wife has been able to establish her case. The real problem now is
that the marriage appears to have broken down irretrievably. Yet if
the findings ol the High Court stand, there is no way out for the
couple, they will continue to be tied to each other since neither B
mutual consent nor irretrievable break down of marriage is a ground
for divorce, under the Indian Divorce Act. Section 10 the Indian
Divorce Act prescribes the grounds on which a husband or wife may
petition for dissolution of marriage. The ground on which a husband
may obtain a decree for dissolution of marriage is the adultery of the
wife. The grounds on which a wife may obtain a decree for dis- C
solution of marriage are change of religion from Christianity to
another religion and marriage with another woman, incestuous
adultery, bigamy with adultery, marriage with another woman with
adultery, rape, sodomy or bastiality, adultery coupled with cruelty,
adultery coupled with desertion for more than two years. It must D
be noted that the Indian Divorce Act applies only to cases where the
petitioner or respondent professes the Christian religion. Section 19
provides that a marriage may be declared null and void on the
ground--

"(!) that the respondent'"'" impotent at the time l!l
of the institution of the suit;

(2) that the parties are within the prohibited degrees
of consanguinity (whether natural or legal) or affinity;

(3) that either party was a lunatic or idiot at the
F
time of the marriage;

(4) that the former husband or wife of either party
was living at the time of the marriage and the marriage
with such former husband or wife was then in force." G

Section 22 provides for judicial aseparation at the instance of either
husband or wife on the ground of adultery, cruelty or deseration for
two years or upwards.
B
The provisions of the Divorce Act may now be compared with
the provisions of other enactments and laws which provide for
708 SUPREME COURT l.BPOll.TI (1985) SUPPL. l.C.R,

-
decrees of nullity of marriage, divorce and juudicial separation.
A Under the Hindu Marriage Act, sec. I 0 provides for judicial separa-
tion. It enables either party to a marriage to seek judicial separation
on any of the grounds specified in sec. 13(1) and in the case of a wife
also on any of the grounds specified in sub-sec. 2 of sec. 13. Section
11 provides for a declaration that a marriage is a nullity if it contra-
vene as any one of the conditions specified in clauses (i), (iv) and (v)
B
of sec. 5. Sec. 5 (i) requires that neither party has a spouse living at
the time of the marriage. Sec. 5 (iv) requires that the parties are not
within the degrees of prohibited relationship, unless the custom or
usage governing each of them permits of a marriage between the
two. Sec. 5(v) requires that the parties are not sapindas of each
c other, unless the custom or usage governing each of them permits of
a marriage between the two. Section 12 further provides that a
marriage is voidable and may be annulied if (a) a marriage has not
been consummated owing to the impotence of the respondent; or (b)
a marriage is in contravention of the conditions specified in sec. 5(ii)
D (marriage without valid consent); or (c) the consent of the guardian,
where required, under sec. 5 was obtained by force or fraud; or (d)
the respondent was, at the time of the marriage was pragnant by
some person other than the petitioner. Section 13(1) enumerates the
grounds for the dissolution of a marriage on the petition of a hus-
band or wife. It provides that a marriage may be dissolved by a
E decree of divorce if the other party-

"(i) has, after the solemnization of the marriage, had
voluntary sexual intercourse with any person other
than his or her spouse, or
F
(i-a) has, after the solemnization of the marriage, treated
the petitioner with cruelty, or

(i-b) has deserted the petitioner for a continuous period
of not less than two years immediately preceding the
G presentation of the petition, or

(ii) has ceased to be Hindu by conversion to another
religion, or
H
(iii) has been incurably of unsound mind, or has been
suffering continuously or intermittently from mental
\lisorc;ler of such a kind and to such an elltent that
j, blENODEH v. s.s. CHOPRA (Chinnappa Reddy, J.) 709

the petitioner cannot reasonably be expected to live
with the respondent. A

{EXPLANATION omitted for the present purpose)

. (iv) has, been suffering from a virulant end incurable

- form of leprosy, or

(v) has been suffering from venereal disease in a com-
municable form, or
8

{vi) has renounced the world by entering any religious C
order, or

(vii) has not been heard of as being alive for a period of
seven years or more by these persons who would
naturally have heard of it, had that party been
alive." D

{EXPLANATION omitted for the present purpose)

Section 13 (1-A) provide•-
E
"{i) that there has been no resumption of cohabitation as
between the parties to the marriage for a period of
one year or upwards after passing of a decree for
judicial separation in a proceeding to which they
were parties, or F

(ii) that there has been no restitution of conjugal rights
as between the parties to the marriage for a period of
one year or upwards after the passing of the decree
for restituation of conjugal rights in a proceedin£ to G
which they were parties.''

Section 13 (2) provides-

"(2J A wife may also present a petition for the dissolution
H
of her marriage by a decree of divorce on the
ground-
7io SUPREME COURT REPORTS [1985] SUPPL. s.c.R.

(i) in the case of any marriage solemnized before the
A commencement of this Act, that the husband had
married again before such commencement or that
any other wife of the husband married before such
commencement was alive at the time of the sole-
mnization of the marriage of the petitioner, or
B
Provided that in either case the other wife is
alive at the time of presentation of the petition, or

(i) that the husband has, since the solemnization of the
-
marriage, been guilty of rape, sodomy or bestiality,
c or

(iii) that in a suit under section 18 of the Hindu Adop·
tions and Maintenance Act, 1956, or in a proceeding
under section 125 of the Code of Criminal Procedure,
D 1973 (or under the corresponding section 488 of the
Code of Criminal Procedure, 1898), a decree or
order, as the case may be, has been passed against
the husband awarding maintenance to the wife not·
withstanding that she was living apart and that since
the passing of such decree or order, cohabitation
E between the parties has not been resumed for one
year or upwards, or

(iv) that her marriage (whether consummated or not) was
solemnized before she attained the age of fifteen years
F and she has repudiated the marriage after attaining
that age but before attaining the age of eighteen
years."

Section 13-A provides that on a petition for dissolution of marriage
by a decree of divorce, ex.;ept in so far as the petition is founded on
G
the grounds mentioned in sec. 13 (i) (ii) (vi) and (vii), the court may,
if it considers it just so to do, having regard to the circumstances of
the case, pass a decree for judicial separation. Section 13·B further
provides that a petition for dissolution of marriage by a decree of
H divorce may be presented to the court by both the parties to the
marriage together on the ground that they have been living separate•
ly for a period of one year or more, that they have not been able to
live together and that they have mutually agreed that the marriage
i. DIENGDEH v. s.s. CHOPRA ( Chinnappa Rtndy, J.) 711

should be dissolved. If the provisions of the Hindu Marriage Act
are compared with the provisions of the Indian Divorce Act, it will A
be seen that apart from the total lack of uniformity of grounds on
which decrees of nullity of marriage, divorce or judicial separation
may be obtained under the two Acts, the Hindu Marriage Act
contains a special provision for a joint application by the husband
and wife for the grant of a decree of divorce by mutual consent 8
whereas the Indian Divorce Act contains no similar provision.
Another very important difference between the two Acts is that
under the Hindu Marriage Act, a decree for judicial separation may
be followed by a decree for the dissolution of marriage on the lapse
of one year or upwards from the date of the passing of a decree for
judicial. if meanwhile there has been no resumption of cohabitation. c
There is no corresponding provision under the Indian Divorce Act
and a person obtaining a dee ree for judicial separation will have to
remain content with that decree and cannot seek to follow it up with
a decree of divorce, after the lapse of any period of time. We may
also notice that irretrievable break down of marriage is yet no D
ground for dissolution of marriage under the Hindu Marriage Act
also, though the principle appears to have been recognised in sec.
13 (l-A) andscc. l3(B).

We may now have a look at the provisions of the Special
Marriage Act, 1954 which applies only to marriages solemnized E
under that Act. Sec.23 of the Act enables the husband or the wife
• to present a petition for judicial separation-(a) on any of the
grounds specified in sub-section (I) and sub-section (1-A) of section
27 on which a petition for divorce might have been presented; or
(b) on the ground of failure to comply with a decree for restitution F
of conjugal rights. Section 24 declares that a marriage may be
declared nullity if (i) any of the conditions specified in clauses (a),
(b), (c) and (d) of section 4 has not been fulfilled; or (ii) the respon-
dent was impotent at the time of the marriage and at the time of the
instituation of the suit. We may notice here that sec. 4 clauses (a),
(b), (c), (d) and (e) provide that neither party has been subject to G
recurrent attacks of insanity or epilepsy, that the male has completed
21 years of age and the female 18 years of age and that the parties
are not within the degrees of prohibited marriage. Section 25
declares that a marriage shall voidable and may be annulled by a
decree of nulity if, -
H

"(i) the marriage has not been consumatted owing to the
712 SUPREME COURT REPORTS (1985] SUPPL. s.c.a.

wilful refusal of the respondent to consummate the
A marriage; or

(ii) the respondent was at the time of the marriage
pregnant by some person other than the petitioner;
or
B
(iii) the consent of either party to the marriage was
obtained by coercion or fraud, as defined in the
Indian Contract Act, 1872."

(The provisos have been omitted as they are not
c necessary for the purposes of this case)

Section 27 enables either the husband or the wife to seek a decree of
divorce on the ground that the respondent-

"{a) has, after the solemnization of the marriage, had
D voluntary sexual intercourse with any person other
than his or her spouse; or

(b) has since the solemnization of the marriage treated
the petitioner with two years immediately preceding
:m the presentation of the petition; or

(c) is undergoing a sentence of imprisonment for seven
years or more for an offence as defined in the Indian
Penal Code;
F
(d) has since the solemnization of the marriage treated
the petitioner with cruelty; or

(e) has been incurably of unsound mind, or has been
suffering continuously or intermittently from mental
G disorder of such a kind and to such an eAtent
that the petitioner cannot reasonably be e~pected to
Jive with the respondent.

(Explanation omitted as it is not necessary.)
H
(f) has been suffering from venereal disease in a com-
municable form; or
J, DIENGDEH v. s.s. CHOPRA (Chinnappa Reddy, J.) 713

(g) has been suffering from leprosy, the disease not
having been contracted from the petitioner; or A
(h) has not been heard of as being alive for a period of
seven years or more by those persons who would
naturally have heard of the respondent if the respon-
dent has been alive."
B
(Explanation omitted as it is not necessary)

Section 27 (IA) enables a wife to present a petition for divorce on
the ground that her husband has since the marriage been guilty of
rape, sodemy or bestiality, or that an order for maintenance has been
made against the husband and that cohabitation has not been
c
resumed for one year or upwards after the making of the
order. Sec. 27 (2) further provides that a decree for divorce may be
presented on the ground that there has been no resumption of
cohabitation as between the parties to the marriage for a period of
one year or upwards after the passing of a decree for judicial separa- D
tion. Sec. 28 provides for the passing of a decree of divorce on the
presentation of a petition by both the parties together on the ground
that they have been living separately for a period of one year or
more, that they have not been able to live together and that theY
have actually agreed that the marriage should be dissolved. It will
be seen that the Special Marriage Act like the Hindu Marriage Act
E
contains provisions for a decree for judicial separation being
followed up by a decree of divorce if there has been no resumption
of cohabitation for a year or more and also for a decree of divorce
by mutual consent. Here again, it will be seen that the principle of
irretrievable break down of marriage seems to be accepted on F
principle, but is not specifically made a ground of divorce.

Under the Parsi Marriage and Divorce Act, 1936, section 30
provides that a marriage may be declared to be null and void if
consummation of a marriage is from natural causes impossible.
Sec. 31 provides for the dissolation of a marriage if a husband or G
wife has continuously been absent for a period of seven years and
has not been heard of as being alive within that time. Sec.32 pro-
vides grounds for divorce :
H
"(a) that the marriage has not been consummated within
one year after its solemnization owing to the wilful
refusal of the defendant to consummate it;
714 SUPREME COURT REPoRTS (198$] SUPPL, S.C.k.

(b) that the defendant at the time of the marriage was of
A unsound mind and has been habitually so up to the
date of the suit; (Proviso has been omitted)

(c) that the defendant was at the time ofmarriage
pregnant by some person other than the plaintiff;
B (Proviso has been omitted)

(d) that the defendant has since the marriage committed
adultery or fornication or bigamy or rape or an
unnatural offence;

c (Proviso has been omitted)

(e) that the defendant has since the marriage voluntarily
caused grievous hurt to the plaintiff or has infected
the plaintiff with venereal disease, or, where the
D defendant is the husband, has compelled the wife to
submit herself to prostitution;

(The proviso has been omitted)

E (f) that the defendant is undergoing a sentence of im·
prisonment for seven years or more for an offence as
defined in the Indian Penal Code;

(The proviso has been omitted)
F
(g) that the defendant the deserted the plaintiff for at
least three years;

(h) that a decree or order for judicial separation has been
passed again st the defendant, or an order has been
G passed against the defendant by a Magistrate award·
ing separate maintenance to the plaintiff, and the
parties have not had marital intercourse for three
years or more since such decree or order;

H
(i) that the defendant has failed to comply with a decree
for restituation of conjugal rights for a year or more;
and
j. bIENGDEH v. s.s. CHOPRA (Chinnappa Reddy, J.) 715

(j) that the defendant has ceased to be a Parsi."
A
(ProviEe has been omitted)

Section 34 provides for judicial separation on any of the grounds on
whicb divorce could be sought; or on the ground that the defendant
has been guility of such cruelty to him or her or to her children or
has used such personal violence, or has behaved in such a way as to B
render it in the judgment of the court improper to compel him or
her to Jive with the defendant. It will be noticed here that under
the Parsi Marriage and Divorce Act also, mutual consent and
irretrievable break down of marriage are not grounds of divorce
though a decree for judicial separation may be followed by a decree
of divorce if the parties have not had marital intercourse for three
c
years or more since such decree or order.

Under the Mohammadan Law, a Muslim husband may divorce
his wife by the pronouncement of talaq. A Muslim wife may after
the passing of the dissolution of Muslim Marriages Act, 1939, obtain D
a decree for a dissolution of a marriage on one of the following
grounds :

"(i) that the whereabouts of the husband have not been
known for a period of four years; E
(ii) that the husband has neglected or has failed to pro-
vide for her maintenance for a period of two years;

(iii) that the husband has been sentenced to imprisonment
for a period of seven years or upwards; F
(iv) that the husband has failed to perform, without
reasonable cause, his matrial obligations for a period
of three years;
G
(v) that the husband was impotent at the time of the
marriage and continues to be so;

(vi) that the husband has been insane for a period of two
years or is suffering from leprosy or a virulent veneral H
disease;

(vii) that she, having been given in marriage by her father
716 SUPREME COURT REPORTS (1985) SUPPL. s.c.R.

or other guardian before she attained the age of
A fifteen years, repudiated the marriage before attaining
the age of eighteen years

(Proviso has been omitted as it is not necessary)

8 (viii) that the husband treats her with cruelty that is to
say-

(a) habitually assults her or makes her life miserable
by cruelty of conduct even if such conduct does
not amount to physical illtreatment, or
c
(b) associates with women of evil repute or leads an
infamous life, or

(c) attempts to force her to lead an immeral life, or
D
(d) disposes of her property or prevents her exercis-
ing her legal rights over it, or

(e) obstructs her in the observance of her religious
profession or practice, or
E
(f) if he has more wives than one, does not treat
her equitably in accordance with the injunctions
of the Qoran;

F (ix) on any other ground which is recognised as valid
for the dissolution of marriages under Muslim Law."
(The proviso bas been omitted as it is not necessary
in the present case).

We may add that under strict Hanafi Law, there was no provmon
G
enabling a Muslim women to obtain a decree dissolving her marriage
on the failure of the husband to maintain her or on his deserting her
or maltreating her and it was the absence of such a provision
entailing 'inspeakable misery in innumerable Muslim women' that
H was responsible for the dissolution of the Muslims Marriages Act,
1939. (See Statements of Objects and Reasons of that Act). If the
legislature could so alter the Hanafi Law, we fail to understand the
hallabalcoo about the recent judgment of this court in the case of
J. DIBNGDBH V, S.S. CHOPRA (Chinnappa Reddy, J.) 717

Mohd. Ahmed Khan v. Shah Bano Begum & Ors. interpreting the
provisions of sec. 125 of the Criminial Procedure Code aad the A
Muslim Law. It is also necessary to add that Mehamedan Law
provides for a decree for divorce known as Khula and mubara' at
by agreement of parties.

It is thus seen that the law relating to judicial separation,
divorce and nullity of marriage is far, far from uniform. Surely
B
the time has now come for a complete reform of the law of marriage
and make a uniform law applicable to all people irrespective of
religion or caste. It appears to be necessary to introduce irretrieva·
ble break down of marriage and mutual consent as grounds of
divorce in all cases. The case before us is an illustration of a case c
where the parties are bound together by a marital tie which is
better untied. There is no point or purpose to be served by the
continuance of a marriage which has so completely and signally
broken down. We suggest that the time has come for the interven·
tion of the legislature in these matters to provide for a uniform code
of marriage and divorce and to provide by law for a way out of the D
unhappy situations in which couples like the present have find
themselves in. We direct that a copy of this order may be forwarded
to the Ministry of Law and Justice for such action as they may deem
fit to take. In the meanwhile, let notice go to the respondents.
E
A.P.J.