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Free for one month and pay only if you like it. Present suits arc filed by Christian wives for Woman seeking casual sex Cyril of their marriages under Section 10 of the Indian Divorce Act, hereinafter referred as 'the Act'. Each of them impugn the vires of the provisions of Section 10 of the Act which provides for the grounds on which a husband and wife can sue for dissolution of marriage.

It is contended that the provisions are archaic and adversely discriminate wives as against husbands merely on ground of sex and are, therefore, violative of article 15 of the Constitution. It is further contended that the aforesaid provisions adversely discriminate them vis-a-vis wives belonging to other communities. They are, therefore, denied equality before law and hence the provisions are violative of Article 14 of the Constitution.

It is also contended that the aforesaid provisions force them to continue to live with their husbands as wives even though they are subjected to cruelty or desertion. They are, therefore, deprived of their right to life and personal liberty thereby violating their dignity. The provisions, therefore, contravene Article 21 of the Constitution. Plaintiffs have also impugned certain ancillary provisions of the Act namely Sections 17 and 20 of the Act which provide for a requirement of confirmation of decrees for dissolution of marriage or nullity of marriage, passed by District Judges, by the High Court and that too normally by a Bench of not less than three Judges.

Present suits were filed on the original side of this Court and came up for hearing before the learned single Judge Mrs K. Baam, J. When the aforesaid challenges was raised before her, by an order passed on 20th of December,she has referred the suits to a larger Bench under Rule 28 of the High Court. Original Side Rules, The learned Chief Justice has, thereafter, referred the suits to the present Full Bench for deciding Woman seeking casual sex Cyril aforesaid issues raised in these suits.

Sections 1017 and 20 of the Act, insofar as they are relevant, provides as under:. When husband may petition for dissolution. When wife may petition for dissolution. Confirmation of decree for dissolution by District Judge. Cases for confirmation of a decree for dissolution of marriage shall be heard where the of the Judges of the High Court is three or upwards by a Court composed of three such Judges and in case of difference the opinion of the majority shall prevail, or where the of the Judges of the High Court is two by a Court composed of such two Judges, and in case of difference the opinion of the Senior Judges shall prevail.

Confirmation of District Judge's decree. Desai, Mrs. Agnes and Mr. Bagaria appearing on behalf of the plaintiffs have contended that the grounds available to the husbands and wives under Section 10 of the Act are discriminatory. Whereas a husband can claim divorce merely by proving that his wife has been guilty of adultery, the wife is not given a similar right. She is required to prove that her husband is guilty of incestuous adultery or bigamy with adultery or marriage with another woman, with adultery or adultery coupled with cruelly or, adultery coupled with desertion.

Whereas the aforesaid enactments have provided larger rights to the wives to claim divorce, the same is denied to wives who are governed by the present Act. Aforesaid provisions of 'the Act' are, therefore, violative of Articles 14 and 15 of the Constitution.

It is further contended that the legal effect Of Section 10 is to compel wives who are cruelly treated or arc deserted to continue to live as the wife of a man she hates.

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Such a life will be a sub-human life without dignity and personal liberty and is, therefore, violative of Article 21 Of the Constitution. Under Section 22 of 'the Act', it is pointed out that Christian spouses are not entitled to dissolution of marriage on grounds of adultery, cruelly or desertion but are entitled Only to judicial separation which has the effect of a divorce a mensa et thoro i.

Christian spouses are thus discriminated only on the ground of their being Christians by religion. This violates the mandate of Article 15 of the Constitution. Article 21 guarantees protection of life and personal liberty. Right to life, includes the right to life with human dignity.

A Christian wife, who is treated cruelly by her husband and is subjected to indignities is compelled to live with him without dignity. Personal liberty guaranteed to every person under Article 21 of the Constitution is denied to Christian women. It is further contended that the ambit and scope of Article 21 has been expanded by Courts from time to time keeping pace with the changes in society and changing needs of the people.

The Supreme Court has expanded the reach and ambit of the fundamental right of personal liberty enshrined in Article 21 being of widest amplitude. Reliance has been placed on the cases of i " Pathumma v. State of Kerala ", ; ii Francis Colaria Mullin v. Triveniben v. State of Andhra Pradesh ". In the case of " P. Parmanand Katara v. Union of India ",the Supreme Court has gone on lo hold that the right to dignity and fair treatment under Article 21 is not only avail a living man but also to his body after his Jail Authorities all over the country are directed not to keep the body of condemned prisoner suspended after the medical officer has declared him dead.

Christian women have, however, been left far behind. It is contended that Section 10 of Woman seeking casual sex Cyril Act, to the extent that it requires adultery to be coupled with cruelty as a ground for divorce is viotative of Articles 14 and 21 of the Constitution. The right to life under Article 21 takes in its sweep a right to life with dignity, without cruelty, mental or physical, and without constant fear of torture and violence. The right to life guaranteed by the Constitution includes the right to seek dissolution of marriage if its existence is an unbearable suffering.

Section 10 denies the Christian woman the right to get dissolution of marriage on the grounds of cruelty even when the marital relationship has been broken. Such a law that compels her to live with a person who is her tormentor till death is oppressive, arbitrary and violative of Articles 14 and 21 of the Constitution.

It will be a sub-human life without dignity. It will be a life without freedom and personal liberty. To uphold the dignity of the individual in all respects as ensured by the preamble of the Constitution is the need of the hour. In the grounds allowed by the laws of dissolution of marriage, there is a discriminatory treatment meted out to Christian spouses. The discrimination is based solely on religion and hence is violative of Article In the context Woman seeking casual sex Cyril the aforesaid submissions advanced before us, it would be useful to note the background under which 'the Act' was enacted.

Christiansin India belong to three different traditions i.

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There is also a large population of Christians among various tribes particularly in the North-East region. These tribes are granted protection under the Constitution in respect of their culture, tradition, customs and laws. Among the three traditions, only the Roman Catholic Church considers marriage to be a sacrament and subscribes to the doctrine of indissolubility of marriage. The other two Churches namely the Protestant Churches as well as Orthodox Churches do not have doctrinaire objection to divorce. The theory of indissolubility was evolved later. By 12th century, the Woman seeking casual sex Cyril Church for mulated the Canon law regulating marriages and divorce among Christians in Europe.

Under the Canon law, marriages were indissoluble. But during the industrial era, the Protestant reformists broke away from the Roman Catholic traditions. In the the French Civil Code Napoleon Code changed marriages from a sacramental status to dissoluble contract.

The doctrine of separation of State and Church and marriages as dissoluble contracts spread all over Europe. Following this tradition, in the matrimonial jurisdiction was transferred from the Ecclesiastical Courts Canon Law Courts or Church Courts to Civil Courts High Courtsand marriages were construed as dissoluble contracts.

Under the Matrimonial Causes Act, a limited ground of dissolving marriages was provided under the statute. Adultery, coupled with other offences like incest, bestiality, cruelty and desertion was made into grounds of divorce for the first time under English law of marriage.

Prior to this, a divorce could only be obtained through an Act of Parliament, a procedure which was extremely expensive rendering divorces outside the reach of commoners. Provisions of the English statute i. The grounds of divorce under the Act were mechanically incorporated within the Indian Divorce Act.

The local Christians of Orthodox traditions were governed by customary laws regarding marriage, divorce and succession. Under a subsequent English statute, the Matrimonial Causes Act ofadultery was made an independent ground of divorce. The ground of adultery was not required to be coupled with any other ground. Under the Matrimonial Causes Act of three new grounds of divorce Were added i. Each of these were independent grounds of divorce. Divorce Reform Act, was, thereafter, enacted which made irretrievable break down of marriage to be sole ground of divorce.

The aforesaid Act is replaced by Matrimonial Causes Act, Section 1 of the Act has reiterated the ground of marriage having broken down irretrievably as a ground for divorce. Section 1 of the Matrimonial Causes Act,provides as under:. Divorce on break down of marriage. I 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. While changes were effected in the aforesaid English statutes, no corresponding amendments were, brought about under the Indian Divorce Act The grounds provided by the English statute i.

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The grounds contained in Section 10 of 'the Act', providing for dissolution of marriage, have remained unchanged. Section 7 of 'the Act', however, provides for automatic inclusion of all laws and procedures of English Matrimonial Courts into the Indian statute. Section 7 provides as under:. Court to act on principles of English Divorce Court. 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 is founded.

Section 7 of 'the Act' has come up for consideration in various decisions. The principle of incorporating the developments under English Matrimonial Statutes through the scope of Section 7 was upheld by the decision of the Full Bench of the Madras High Court in the case of, " Agnes Sumathi Ammal v. Paul ", AIR Madras After independence, inthe issue whether the statute of sovereign Republic could be made subordinate to the laws of a foreign power, was examined by the Madras High Court in the case of, " George Swamidoss Joseph v.

Harriet Sundari Edward', FB. The Court held to the following effect:.

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Courts must follow law and practice in England. The above decision was, however, overruled in a later decision of the Madras High Court in, " T. Bashiam v. Victor", FB. It merely makes a provision for conforming to the practice and principle of matrimonial Courts in England in the matter of divorce or dissolution of marriage subject to provisions and scheme of Indian Divorce Act.

Without actually slating so in so many words, the above decision, in effect, struck down Section 7. Any reform within Indian Divorce Act could be brought about either through Legislative reform or judicial directions. Developments in England cannot automatically be incorporated into 'the Act', Provisions of Section 7 it was found, could not incorporate the later amendments carried out from lime to time under English laws. The Law Commission has from time to lime taken various steps to bring about changes in 'the Act'. In or around some private Bills were introduced in parliament to reform provisions of the Act.

In the recommendations of the Law Commission, grounds for divorce were laid down, which include i adultery, ii conversion, iii insanity, iv virulent and incurable leprosy, v communicable venereal disease, vi not heard of for seven years, vii non-consummation of marriage, viii non-compliance with a decree of restitution of conjugal rights, ix desertion and x cruelty.

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