Holding

Mutual consent is not a ground for divorce under the Indian Divorce Act 1869 and Section 7 cannot be construed to incorporate Section 1(2)(d) of the English Matrimonial Causes Act.

Summary

Reynold Rajamani and his wife, married under the Indian Christian Marriage Act, filed a joint petition under Section 28 of the Special Marriage Act seeking divorce by mutual consent. The trial court dismissed the petition, and the couple attempted to rely on Section 7 of the Indian Divorce Act 1869 read with Section 1(2)(d) of England's Matrimonial Causes Act 1973, claiming a ground of two‑year separation. Both the trial court and the Delhi High Court rejected this reliance. The Supreme Court held that mutual consent is not a ground for divorce under the Indian Divorce Act, that Section 7 cannot be interpreted to incorporate the English provision, and that the High Court's Letters Patent jurisdiction cannot create a new ground not specified in Section 10 of the Act. The Court emphasized that only Parliament can amend the statute to include such a ground. The appeal was dismissed.

Issues considered

Whether Section 7 of the Indian Divorce Act 1869 can be read to incorporate the provisions of Section 1(2)(d) of the Matrimonial Causes Act, 1973, thereby making mutual consent a ground for divorce.
Whether the Letters Patent jurisdiction of the High Court allows it to grant a decree of divorce on a ground not expressly provided in Section 10 of the Indian Divorce Act 1869.

Legislation cited

Constitution of Indias. Article 14
Indian Christian Marriage Act, 1872s. 27
Indian Divorce Act, 1869s. 10, s. 7
Matrimonial Causes Act, 1973 (England)s. 1(2)(d)
Special Marriage Act, 1954s. 28

Subjects

divorcemutual consentstatutory interpretationIndian Divorce Actmatrimonial lawletters patent jurisdictionpost‑independence legislationincorporation of foreign law

Judgment

A 32
RllYNOLD RAJAMANI & ANR.

v.
B UNION OF INDIA & ANR.

July 30, 1982

[R.S. PATHAK, 0. CHINNAPPA REDDY AND
•
c BAllARUi:. ISLAM, JJ.]
\
Indian Divorce Act 1869 1 Ss. 7, 10-'MutuaJ, consent' whether a ground for ~
divorce. , ~

Interpretation of Statutes-Matrimonial statutes-Legi1/ation by lncorpora..
D lion-Post 1947 British laws wheth~r incorporated into Indian lilw.

The appellants, who were husband and wife belonging to thC Roman
Catholic Community were ·married under section 27 Of· the Indian Christian
Marriage Act 1872. They filed a joint petition under Section 28 of the Special
Marriage Act for a decree of divorce by mutual consent in the District Court.
The trial court dismissed the petition on th.e ground that section 28 of the Special
E Marriage Act could not bC aVailed of. 'The Supreme Court allowed the appel-
lants to amend their joint petition to enable them to rely on sectio_n 7 of the
Indian Divorce Act 1869 read with section l (2)(d) of the Matrimonial Causes
Ac~ 1973 of England and to seek divorce on the ground that they had been Jiving
separately for more than two years and had not been. able tO live together and
that the marriage had broken down irretrievably, an~ that therefore they were
entitled to a decree of divorce. The District Court however dis1nissed the peti-
F • tion holding that theY were not.entitled to rely on section J (2)(d) Of the English
Statute. Jn appeal the High Court affirmed the view taken by the trial Court.

In the appeal to ibis cour,t it was contended' on behalf of the appellants:
(1) that the trial court and the liigh Court were wrong and that section 7 of the
Indian Divorce Act 1869 incorporatC"d lhe provisions of seclion 1(2)(d) of the
G Matrimonial Causes Act 1973 and that the appellants were entitled to the benefit
of the ground for divorce as set forth in the latter enactment, and (2) that the
Letters Paten:t jurisdiction enjoyed by the High Court in Matrimonial matters "is
sufficiently extensive to enable the High Court to make 3. decree for"'Clivorce.

Dismissing the appeal,
H
HELD : [By the CourtJ

•
REYNOLD RAJAMANI v. UNIOJ'l (Pathak, J.) 33

Muttial consent fs not a ground for divorce under the Indian Divorce A

- A~t 1869. The provisions of section 1(2)(d) of the Matrimonial Causes.Act 1973
of England cannot be read into sedtion.7 of the Indian o·ivorce Act, 1869. (39 A]

[Per Pathak and Baharul lslam, JJ.j
- I
I. Whether a provision for divorce by muttial consent should be iiicluded
in the Indian Divorce Acfis a matter for legislative policy. The courts cannot
ex: tend or enlarge legislative policy by adding· a provision to the statute which ·was
never enacted there. It is for Parliament to consid~r whether the Indian Divofce
Act, 1869 should be amended so as to include a provision for divorce by mut~al
consent. [38 C'D; 39 F]
I .
" 2. The Letters Patent jurisdiction enjoyed by the High Court in n1atri- .C
.... monial matters cannot be construed to incltide a ground for divorce not specifi-
cally set forth in section 10 of the Indian Divorce Act, '!869. [39 E]

M. Barnard v. G.H. Barnard A.LR. 1928 Cal. 657; Miss Shireen A-fall v.
John James Taylor A.LR. !952 Pb. 277: T.M. Bashiam v. M. Victor A.1.R. 1970
Mad. 12; and A. George Cornelius v. Elizabeth Dopti San1add11am A.I.R. 1970.
Mad. 240. approved. D
[P<r Chinnappa Reddy and Baharul Islam, JJ.].
•
Legislation whenever made bY Parliament of a fore~go state cannot auto- .
ma.tically becon1e part of the. law of another sovereign state. Whatever interpre- ·
tation of section 7 of the Indian Divorce Act, 1869 was permissible before August
15, 1947 when th~ British Parliament ha~ plenary· _pOwers of legisla.Uqn over E
Indian territory, no interpretation js now permissible which would incorporate
post-1947 Br_itish laws into the Indian laws. [39 G-H; 40 A] -

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2631
of 1982.

Appeal by special leave from the judgment and order dated
the 3rd Octoher, 1980 of ihe Del.hi High Court in C.M. (Main) '
No. 184 of 1980.

Miss Lily-Thomas, KS. Gill and S.K. Arora, for tlie Appellant. _G
- '

S.T. Desai and Miss
'
A. • Subhashini t'or
.
the Respondent.
I

... The following Judgments were deliver~d;
H
PATHAK J. The appellants, who belong to the Roman
Catholic commnnity, were mafri~d on Dece~ber 30, 1967 iq
A
34 SUPREME COURT REPORTS (1983] J S.C.R.

Podannur in the State of Tamil Nadu under s. 27 of 'the Indian
•
Chri;tian Marriage Act, 1872. On July 26, 1979 they put in a joint
petitiofi under s. 28·of the. Speeial ·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 peti-
B tion on the _ground that s. 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 appea I to this Court. In the appeal they applied for permi>sion
.. to amend the joint'· petition to enable ihem to rely upon s. 7 of the
c Indian Divorce Act, 1869 read with s. I (2) (d) of the Matri-
monial Causes Act, 1973 'or England. The amendment was allowed, •
a.nd 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 h.ad not been able to live together and
their marriage had broken down irretrievably and therefore they were
D entitleil 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 s. I (2) (d) of the English
statute. The appellants took the matter to the High Court of Delhi
and·the l-Iigh Court has affirm'ed the view taken by the trial
court.
E
In this appeal Miss .Lily. Thomas, appearing for the appellants,
contends that the trial court and the High Court are wrong and that
in. reading s. 7 of the Indian Divorce Act, 1869 the provi-
sions of s. I (2) (-OJ of the Matrimonial Causes Act; 1973 must be
F deemed to be incorporated therein and therefore the appellants are
entitled to the benefit of the ground for divorce set 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 Jeng th- but we indicated that the point raised by her did not carry
conviction, and we reserved judgment in order to give a fully rea-
G soned order. Shortly thereafter, Miss Thomas's put in an application
asserting that she had information, that the Government of India was
proposing to amend the matrimonial Jaw in relation to the Christian
community in India,and praying that in the circumstances judgment
may not be delivered for sometime. There has, however, been no
H change in the law since, and it is appropriate, we think, that
jud~menl should be pronounced now without further delay.
. '
REYNOLD RAJAMANI v. UNION (Pathak, J.) 35

. The main contention raised /by Miss Thomas is that the A
appellants are entitled to tbe benefit of s. 7 of the Indian Divorce
Act and therefore, by reason of that .provision, to rely on s. I (2) (dJ
of the Matrimonial Causes Act, 1973. There is no doubt that if the
provisions.of s. I (2) (d) of the English statute can be read.ins. 7 of
the Indian Divorce Act and the appellants can establish that the
8
.conditions set forth in s. I (2) (d) are made out the appellants will
be entitled to claim a decree of divorce. But we are not satisfied
that s. 1 (2) (d) of the English statute can be read in s. 7 of the I

Indian Divorce Act. Sub-ss. (J) and (2) of s.· 1. of the Matri-
monial Causes Act, 1973 pr9vides :-
c
,lit., · "(I) Subject to sect.ion 3 belo)V, 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 hearing a petition f;,r divorce shall not hold
the marriage to have broken down irretrievably unless
the petitiQner satisfies the court of one or more of the
following facts, that is to say-:-

(a) that the respondent bas committed adultery and E
the petitioner finds it intolerable to live with the
respontlent;

(b) that the respondent has· behaved in such a way
tlrat the petitioner cannot reasonably be expected F
to live with. the respondent;

(c) that the respondent has deserted tbe petitioner for
a continuous perind of at· least two ye~rs imme-
diately prec_eding the presentation of the peti-
tion;.
G
(c!) that.the parties to the marriage have lived apart.
for a continuous period of at least two years
immediately prece~ing the presentati9n ·of the
petition (hereafter in this Act referred to as "two H
years' separation") and the respondent consynt~
to a decree being granted; ·

/
I

36 SUPREME COURT REPORTS [1983] 1· s.c.1<.

A (e) that the parties to the ma~riage have lived apart •
for a continuous period of at least five years
immediately preceding .the ·presentation of the peti· .
,/
ti on (hereafter i;; this Act referred. to as ·','five
years' separation)." ; ··
. \

'D The circunistarrces set forth in sub·s. (2) of s. I constitute. the basis
for holding that the marriage has broken down irretrievably. Can
thes~ provisions be deemed incorporated in· s, 7 of the .Indian
. ·Di~orce
.
?" S. 7- provfoes : -
Act -/ ,
C · · "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 pri.nciples
and.rules which, 'in the opinion of the said·. Courts, are· as
·nearly as may-Oe conformable to the principles and. rules
on \vhich-tbe Court for Divorce and Matrimonial Causes
D 'in England for the time being acts and gives relief:

Provided that nothing in this yection shall. deprjve_ the
\ said Courts of jurisdiction in a case where the parties tq. a
marriage professed the Christian religion· at die time of, the
occurrence of the facts .on which the.,.claim 'to relief is
E founded." .
\

The section requires that in all suits or proceedings und~r the Indian · .
Divorce Act the High 'Court and District Courts shall "act and give
relief on "principles and rules" which conforin as nearly as may be·
·to tbe principles and rules 'on which the Court for Divorce and·
.Matrimonial· Causes of England acts and· gives relief. What is con-
template(\ is the manner in which the court will exercise its jurisdic·
tion for the purpose of disposing of a· pending suif or .. proceeding:
- The CApression ' 1 princip!es and rul~"' does n<?t mean the grounds on
"hich a suit or proceeding may be instituted. The grounds are
ordinarily pleaded in. Jhe suit ·or pro<:~eding when. the petitioner
comes to court and ·invokes its jurisdiction. It is after the suit or
proceeding is ente,rtaii1ed that the. question arises of decidini cln the
'norms to be applied by the court.for the purpose of disposing or.it.
If it ·were otherwise, plainly there would be a conflict with s:-10 of.
H th~ Indian Divorce Act. Fors. 10 sets forth the limited grounds on
which 'a petition may be presenled by a husband or wife for dissolu-
.tion of the marriage.
.
'~-.REYNOLD RAJAMANI V, UNiON (Pathak, J) 3?

It cannot be denied that society is generally interested in main- A
taining the marriage bond and preserving the matrimonial state with
a view to protecting societal stability,. the family home and the
proper growth and happiness of children· of the marriage: Legisla-
tion for the purpose of dissolving the marriage ponstitutes a
departure from that primary principle, and the Legislature is extre-
mel}·circumspect in setting forth the grounds on which a marriage B
'may be dissolved. The history of all matrimonial legislation will
show that at t_he outset conservative attitudes influenced the grounds
on which separation or divorce could be granted. Over the decades,
a more liberal attitude has been adopted, fostered by a recognition
of the need for the individual happiness of the adult parties directly
involved. But although the grounds for divorce have been libera-
c.
,ii,
I '· lised, tfiey nevertheless continue to ro·rm ati·exception to the general
principle favouring the continution of the marital tie. In our
opinion, when a legislative provision specifies the grounds on wllich •
divorce may be granted they constitute. the only conditions on which
the court has jurisdiction to grant divorce. If grounds need to be I)
added to those afready specifically set forth in the legislation, that_ is
the business' of the Legislature and not of the courts. It is another
·matter that in consiruing the language in which the grounds are
incorporated the courts should give a liberal· construction to it.
Indeed, we think thai the courts must gi¥e the fullest amplitude of
meaning to such a-provision. But it must be meaning which the E
. language of the section is capable of holding. It cannot be
extendeooy .adding new grounds not enumerated in the section.

When therefore s. IO of the Indian Divorce'Act specifically sets
forth the grounds on which a marriage may be dissolved, additional
grounds cannot be includ~d by the judicial constructi'on of some F
other section unless that section plainly intends so. That, to our
mind, s: 7 does not. We may point out .that in M. Barnard v. G.H.
Barnard(') the Calcutta High Court repelled a similar contenti~n and
' held that s. 7 could not be construed so as to "import into Indian /
Divorce Jurisprudence any fresh ground for relief other than those
set fortb ln.s, JO'\ and that "the only grounds on which a marriage: G
may be dissolved are those set forth in s. 10 of the Act ... ". The·
Punjab High Court in Miss Shi~een Mall v. John.James Taylor(') has
also tak!'n the view that the- grounds set forth, ins._ 10 of the Iiidian
H
(l) AIR 1928 Cal. 657.
(2) AIR 1952 Pb, 277.
38 . SUPREME COtJRT REPORTS (1983) I S.C.ll.c
<

A Divorce Act cannot be enlarged by reference to s. 7 of the Act.
So also has a Special Bench of the Madras High Court in T.M.
Bashiam v. M. Victor(') and a Single Judge of that Court in
A. George Cornelius v. Elizabeth Dopti Samadanam.(')

Mhs Thomas appeals to us to adopt a policy of "social
B engineering" and to give to s. 7 the conte'lt which has been enacted
in s. 28 of the Special Marriage Act, 1954 and s. 13B of the Hindu
Marriage Act, 1955, both of which provide for divorce by mutual
consent. It is possible to say that the law relating to Hindu marri·
ages and to ·marriages governed by the Special Marriage Act presents
c a more advanced stage of development in this area than the Indian
Divorce Act. However, whether a provision for divorce by mutual
consent.should be included in the Indian Divorce Act is a matter of
~l
legislative policy. The courts cannot extend or enlarge legislative
policy by adding a provision to the statute which was never enacted
there. •
D
Reference is inade by Miss Thomas to s. 2 (ix) of the Dissolu-
tion of Ni'uslim Marriage Act, 19~9 which empowers the 9ourt to
dissolve a Muslim marriage on any ground other than those already
enumerated in the section ":-vhich is recognised as valid for the
dissolution of marriages under Muslim Jaw." No such provision is
E contained in s. JO of the Indian Divorce Act.

. Learned· counsel of the appellants has referred us to
B. Jswarayya v. Swarnam Iswarayya( 3) and George. Swamidoss Joseph
v. Miss Harriet Sundari Edward.(') Nothing said in those -cases
F helps the appellants. The first case was concerned with the ques- ·
tion whether an appellate court can increase the amount of alimony.
payable by the husband to the wife without an appeal by he<. And
the second deals with the question whether the Indian Courts can
make a decree nisi for nullity absolute within a shorter period than ,•
that specifically mentioned in the Indian Divorce Act.
G

(1) A.J.R. 1970 Mad. 12.
12) A. I. R. 1970 Mad. 240;
(3) A.LR. 1931 Privy Council 234.
H
(4) A.J.R. 1955 Mad. 341.
REYNOLD RAIAMANI V. UNION (Chinnappa Reddy, J.) . 39

We are Qot satisfied that s. 7 of the Indian Divorce Act can
A
be read to include the provisions of s. I (2) (d) of the 'Matrimonial •
·Causes Act, 1973. This contention of the appellant must fail._ ,

Learned counsel for the appellaQtS then points out that a
Christian marriage can be registered under the Special Marriage ' B
Act, 1954 and that there is no reason why a marriage registered
under the Indian Christian Marriage Act should not enjoy an,
advantage which is· available tci a marriage registered under the
Special Marriage Act. Reliance is placed on the constitutional
prohibition against discrimination embodied in Article 14 of the
. '

Constitution. Assuming that the marriage in this case could have C
been registered under the Special Marriage Act, 1954, inasmuch as
it was solemnised in 1967 it was open to the parties to avail of. that
Act instead of having resort to the Indian Christian Marriage Act,
1872. In the circumstances, it is not open to the appellants to com-
plain of the disadvantage now suffered by them. ·
D
It is also urged by the appel.)ants that the Letters Patent
jurisdiction enjoyed by the High Court in matrimonial matters is
sufficiently extensive to enable the High Court to make a decree
for divomi on the ground now pleaded. We have examined the
matter carefully and we do not see how that jurisdiction can be
construed to ii:iclude a ground which is not specifically ·Set forth in . E
s. 10 of the Indian Divorce Act.

We are not satisfied that this appeal can succeed. It is for
Parliament to consider whether the Indian Divorce Act, 1869 should·
:be amended. so as to include a provision for divorce by mutual con- F
sent. The ,appeaffails and is dismissed but in the circumstances
there is no order as to costs.

CHINNAPPA REDDY, J .. I agree with my brother Pathak, J. that
"mutual consent'. is not a ground for divorce under the Indian .
Divorce Act and that the provisions of s. I (2) (d) oft he British G
Matrimonal Causes Act, l 973 cannot be read into the Indian
Divorce Act merely because of s. 7. It is unthinkable that l~gislation
whenever made by the Parliament of a foreign state may automati·
cally become part ;f the .law of anothet. sovereign State. Legislation H
by incorporation can never go so far. Whatever interpretation of s..7
was permissible before August 15, 1947 when the British Parliament
40 SUPRtME COURT REPORTS [1983] 1 S.C.I!..

A bad plenary powers of legislation over Indian territory, no interpre-
tation is now permissible which would incorporate post-1947 British
laws into Indian law.

My brother Pathak J. has pointed· out that the history of
B matrimonial legislation has been towards liberalisation of the
grounds for divorce. Inevitably so. The history of matrimony
itself, in the recent past, h~s been a movement from ritual and .
sacrament to reality and contract even as the history of the rela-
tionship of the. sexes has been from male dominance to equality - ..
beiween the' sexes. But the world is still a man's world aod the
c laws are man-made laws, very much so.. We have just heard that
in an advanced country like the United States of America, the
Equal Rights for Women Amendment could not be successfully
pushed through for failure to obtain the support of the necessary
,.number of States. Our constitution-makers and our Parliament
have certainly done better. We have constitutional and legal •
D equality for the sexes. But. even so, economic and social equality
between t.he sexes appears to be a very distant goal. One has only
to read the daily sickly repor\s of 'dowry deaths' and 'atrocities on
_women' w realise that wotnen, in our country, are yet treated as
commodities and play-things. The root cause of the inequality
between the sexes, like other class inequalities, is their social and
E economic inequality.. All in.equality will end when social and econo-
mic inequality ends. It is, therefore, obvious that true equality
b,twccn the sexes and else where is possible only when eeonomic
and social inequalities disappear." Our Constitution proclaims, in
the Preamble, the establishment of a socialist State where there will
be justic.e, social, economic and political, as our constit_utional goal
and this is reiterated in the Fundamental Rights' and Directive
Principles' Chapters. But, the march towards equality and eco~omic
and social justice is still a 'long· march' and meanwhile, 'Yhat of
' divorce by mutual consent ? . Yes, I agree with Miss Lily Thomas
_that divorce by mutual consent should b.e available to every married
G
couple, whatever religion they may profess and however, they were/
'married. Let no law compel the· union of man and woman who
have agreed on separation. If they desire to be two, why should .
the law insist that they be one? But I have a qualification. The
woman must be p;otected. Our society still looks askance at a
H
divorced woman. A ·woman divorcee is yet a suspect. Her chances
of survival are dimini,hed by the divorce. So; the law which grants
the decree f-Or divorce must secure for her some measure of economic
)

REYNOLD RAJAMANI v. UNION (Chinnappa' Reddy, /.) 41
•
independence. H should be so whatever ,be the ground for divorce, A
whether it is mutual conse~I; irretrievable break down of the
marriage, or even the fault of the woman herself. Every divorce
solves a prol\lem and creates. another. Both proble;ns need to be
solved, no matter who" is responsible for the break down of the
marriage. If 1he divorce law is to be a real success, it should make
provision for the economic i~depeodence of the female spouse.· B
After all, Indian society today is so constituted that a woman is
generally helpless and her position become worse if. she is divorced.
It is necessary that the. law should· protect . her interests even if she
be an erring spouse, lest she become destitude and a dead loss to
society.
c
N.V.K. Appeal dismissed.

/

"