Judgment

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 throughout the territory of India." The present case is yet 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, C. J., in the recent case decided by the Constitution Bench (Mohd. Ahmed Khan v. Shah Bano Begum (1985 Cri LJ 875) :

"There is no evidence of any official activity for framing a common civil code for the country ..................A common Civil Code will help the case of national integration 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 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 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 has to be assumed by the courts because, it is beyond the endurance of sensitive minds to allow injustice to be 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 than justice from case to case."

2. 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 Presbytarian Christian at Shillong. She is now a member of the Indian Foreign Service. The husband is a Sikh. They were married under the Indian Christian Marriage Act, 1872. The marriage was performed 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 22 of the Indian Divorce Act, 1869. The prayer for declaration of nullity of marriage was rejected by a learned single 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 judgment 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 marriage. 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 husband in that though the husband is capable of achieving erection and penetration, he ejaculates prematurely before the wife has an orgasm, leaving the wife totally unsatisfied and frustrated. 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 of the High Court stand, there is no way out for the couple, they will continue to be tied to each other since neither mutual consent nor irretrievable breakdown of marriage is a ground for divorce, under the Indian Divorce Act. Section 10 of 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 disso