S. 10 (A)’s modified reading
Soumya Ann Thomas v. UoI. WP(C).No. 20076 of 2009(R). High Court of Kerala, Date of Judgment 25-02-10
This case raises interesting issues relating to; personal law, constitutional law, their interrelationship and judicial review of legislation. The HC of Kerala by this decision held a part of Section 10 (A) of the Indian Divorce Act, 1869 as violative of Articles 14 and 21 of the Constitution of India.
The case challenged the vires of Section 10 (A) as far as it stipulates a period of two years of living separate before filing a petition for dissolution of marriage by mutual consent mandatory. The content of this provision, which is a delayed bogie as Hindu, Parsi and Special Marriage Act already had provision for dissolution by mutual consent and it was in 2001 that the provision was added to Indian Divorce Act, is similar to all earlier specified laws but for the lock-in period. In other similarly placed enactments the period is one year.
The radical view on the constitutionality of personal laws
The court suggest reconsideration of Narasu Appa
as it “… find no reason, in a secular republic, to cull out "personal law" alone and exempt the same from the sweep of Art.13 and Part III of the Constitution.” Having said this, the court finds no reason to engage with this issue as the court categorises the personal law into two; traditional personal law - pure and simple and statutory law enacted by the Parliament. The court is of the opinion that a statutory law relating to personal law has to satisfy Part III and amenable to Art. 13 of the Constitution. This justification is drawn from Shri Krishna Singh v. Mathura Ahir ((1981) 3 SCC 689), wherein the court “observed that when personal law is altered, "modified or abrogated by statute", the same will have to satisfy the test of Art.13. This position is reiterated in another Kerala High court judgment, Mary Sonia Zachariah v. Union of India (1995 (1) KLT 644 (FB)). The courts sweeps away Narasu Appa Mali in the following words Mali
“We do, in these circumstances, hold that even if the dictum in Narasu Appa (supra) is valid and binding and has been approved by a co-equal Bench of this Court as well as the Supreme Court, the same cannot in any way justify the contention that Sec.10A of the Divorce Act is not amenable to challenge under Art.13 of the Constitution. The said contention must, in these circumstances, fail. We hold that Sec.10A of the Divorce Act shall have to stand the test of Art.13 of the Constitution.”
Progressive it is, nevertheless, lacks legal reasoning to reach such a position. The inequalities generated by personal laws and the discrimination it perpetuates has been a matter of concern for long and the judicial stand in validating the objectionable Narasu Appa position has been under criticism. This court had very well begun raising its objection in this judgment but rather than taking it by the horn, avoided dealing with the issue. The incapacity of the court to overrule a holding position of the SC and the delay and injustice that could cause if the matter is referred might have prompted the judge to adopt the present course of action.
The petitioner challenged the two year stipulation in Section 10 (A) as violative of equality clause. The dual test of reasonable classification in this case, for the court, is not satisfied, though the Addl. Solicitor General argued that this is a law specifically for the Christians and such a classification is rational, and that it is the legislative wisdom that prescribed for a two years period of separate living before filing for a dissolution of marriage with mutual consent has a rational nexus to the objective.
The court makes a curious case of classification here to hold that the classification made in the Act in bringing all Christians within its fold and differentiating Christians from members of other religion is hit by Art. 14. From the whole of Christian community the court carves another classification, secular Christians who despite having got their marriage solemnised under Christian tradition and rites wish to avail the secular norms of divorce by mutual consent.
The rationale in court’s own words reads thus in para 31
“They [the class of people] are people who may have got their marriages solemnized in accordance with their respective personal laws; but want such marriages to be dissolved on the ground of mutual consent. That is the dominant principle of classification. To such class of persons benefits have been extended by amendment and incorporation of identical provisions in the statutory law relating to marriage. The beneficiaries do not primarily and dominantly belong to the class of Christians, Hindus or Parsis. They are not classified for the purpose of the amendment on the basis of their religion at all. They belong to the class of persons who notwithstanding the solemnization of their marriage under the personal law and notwithstanding the absence of such provisions in their personal law, want to claim the benefit of such dissolution of marriage by mutual consent as is available to those who have got their marriage solemnized under the secular law i.e., the Special Marriage Act.” (Emphasis supplied)
The court apparently bases its reasoning on the secular character of the nation and Art. 44, which is a lead to uniform civil code. For the court, it is unjustifiable to discriminate people on the basis of their religion when the legislature has extended the benefit to all the people whom the court has categorised as those who solemnised the marriage per personal laws but want such marriage to be dissolved on the ground of mutual consent. This rationale to me is rather fictitious.
Court finds the violation of equality and reasons that “[w]hen the legislature has perceived that the time is ripe to extend the benefit of the concept to a particular community, to further discriminate them on the basis of their religion is certainly anathema to law. It offends the principle of equality. The stipulation of the longer period of mandatory separate residence, the differential, has no rational relationship to the object sought to be achieved. In short, we agree that classifying persons into one group to extend the benefit of the secular concept of divorce by mutual consent to them by progressive amendment of the personal law though in stages and later discriminating among them on the basis of religion by prescription of a longer period of mandatory minimum separate residence clearly offends the mandate of equality under Art.14 of the Constitution.”
Right to life
The court found the stipulation of different periods for different religion as unjustified, unfair, unjust and wrong. Such a stipulation is unreasonable, arbitrary, fanciful and oppressive.
The anchor of this argument is in the earlier finding of classification of all persons belonging to all religions to whom the benefit of mutual divorce is extended. A stipulation which is more onerous to some, than the counter parts in other religion, for the court, offends the mandate of Art. 21. Here again the court left the entire jurisprudence of Art. 21 behind to come to a result oriented review of the legislation.
Brushing aside the argument of the ASGI that the court while exercising its power under judicial review shall not question the legislative wisdom the court declared the stipulation of two years as violative of Art. 14 and 21. The rationale given by the court is that when legislative wisdom crystallises into a legislative Act, the same shall be reviewed to see its compliance with Part III of the constitution. The court employed the doctrine of severability in an atypical way to modify the language of the Section that two years shall be read as one year in the following words
“[R]ead down such an unconstitutional provision which is unrelated to the object sought to be achieved The stipulation of two years can be severed and can be read down to one year to bring it to be in conformity with the provisions of other laws to avoid the vice of unconstitutionality.”
P.S. You might be interested to read the judgment of the same bench, couple of weeks later, on the application of Section 125 Cr.P.C for Muslim women and talaq in KUNHIMOHAMMED v. AYISHAKUTTY , RPFC.No. 53 of 2006, Judgment dated 17/03/10