Judgment

SAWANT, J.- The hearing of this petition is confined only to examining the vires of Section 10 of the Indian Divorce Act, 1869 (hereinafter referred to as the Act). The petitioner was married to Respondent 2, Monika on 8-10-1986 as per the Christian rites in a Methodist Church at Muzaffarpur in Bihar. After marriage, the parties returned to Delhi on 10-10-1986 Respondent-Monika, however, left the matrimonial home on 26-12-1986, i.e., two months and a fortnight thereafter and never returned to it again. It is not in dispute (respondent-Monika has not filed any counter to the petition) that the parties have been living separately since the day of the desertion by Monika on 26-12-1986 as alleged in the petition. The petitioner further alleges that she has been working as a teacher in St. Mary Girls High School, Deogarh, Bihar.

2. In spite of notice to respondent-Monika and intimation to her that the petitioner had deposited Rs 3000 for her costs in attending the Court and the assistance of a Senior Advocate, Shri K.K. Venugopal is given to her to conduct her case, she has neither filed counter, nor attended the Court. On the other hand, by a letter of 5-1-1993 she has intimated the Court that she is unable to attend the Court and that she would abide by the decision of the Court.

3. Since the vires of Section 10 was under challenge, notice was issued to the Attorney General. The Attorney General, however, did not choose to put in his appearance. We were, however, ably assisted by Shri Venugopal, learned Senior Advocate appointed to represent respondent-Monika. After the matter was heard, oral directions were given to the parties to submit their written submissions. The petitioner was to file his written submissions first and the respondents were to file the written submissions within two weeks thereafter. In spite of our listing the matter on 19-1-1994 again for reminding the parties to file their written submissions, the petitioner has not done so and consequently the respondents have not filed their written submissions. We are, therefore, proceeding to deliver this judgment on the basis of the oral submissions and in the absence of the assistance of the Attorney General.

4. The petitioner had initially challenged vires of Section 10 of the Act as being arbitrary, discriminatory and violative of Articles 14, 19, 21 and 44. However, the challenge on the ground of violation of Articles 19, 21 and 44 has not been pressed. We may mention here that Article 44 was invoked since the other prayer of the petitioner was to direct the first respondent-Union of India to enact a common civil code. That relief is no longer pressed and, as stated earlier, the petition is confined to the challenge to Section 10 of the Act on the ground of the violation of Article 14 of the Constitution. The relevant portion of Section 10 reads as follows :

"10. When husband may petition for dissolution.- Any husband may present a petition to the District Court or to the High Court, praying that his marriage may be dissolved on the ground that his wife has, since the solemnization thereof, been guilty of adultery.

When wife may petition for dissolution.- Any wife may present a petition to the District Court or to the High Court, praying that her marriage may be dissolved on the ground that since the solemnization thereof, her husband has exchanged his profession of Christianity for the profession of some other religion, and gone through a form of marriage with another woman;

or has been guilty of incestuous adultery,

or of bigamy with adultery,

or of marriage with another woman with adultery,

or of rape, sodomy or bestiality,

or of adultery coupled with such cruelty as without adultery would have entitled her to a divorce a mensa et thoro,

or of adultery coupled with desertion, without reasonable excuse, for two years or upwards."

It will be apparent from the aforesaid provisions that while the husband can seek dissolution of marriage on the ground that his wife has