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Kerala High Court
M.M.PAREED PILLAY,T.V.RAMAKRISHNAN,P.SHANMUGAM
Ammini E.J.and etc. - Appellant
Versus
Union of India - Respondent
Decided On : 02/24/1995
The Court held that Section 10 of the Indian Divorce Act, 1869 (the Act) in so far as it obliges a Christian wife to prove adultery in addition to cruelty as without adultery would have entitled her to a divorce measa et toro or desertion without reasonable excuse for two years or upwards is totally arbitrary and violative of the right to equality under Art. 14 and right to live with human dignity and personal liberty under Art. 21 of the Constitution of India. The Court also held that the impugned provisions in so far as they compel a deserted or cruelly treated Christian wife to live perpetually tied down to a marriage which has for all intents and purposes ceased to exist as a result of desertion and cruelty shown by the husband concerned are highly harsh and oppressive and as such arbitrary and violative of Art. 14 of the Constitution of India.
Fact of the Case:
None
Finding of the Court:
The Court held that the impugned provisions in Section 10 of the Act in so far as it obliges a Christian wife to prove adultery in addition to cruelty as without adultery would have entitled her to a divorce measa et toro or desertion without reasonable excuse for two years or upwards is totally arbitrary and violative of the right to equality under Art. 14 and right to live with human dignity and personal liberty under Art. 21 of the Constitution of India. The Court also held that the impugned provisions in so far as they compel a deserted or cruelly treated Christian wife to live perpetually tied down to a marriage which has for all intents and purposes ceased to exist as a result of desertion and cruelty shown by the husband concerned are highly harsh and oppressive and as such arbitrary and violative of Art. 14 of the Constitution of India.
Issues: 1. Whether Section 10 of the Indian Divorce Act, 1869 (the Act) is violative of the fundamental rights guaranteed under Arts. 14, 15 and 21 of the Constitution of India? 2. Whether the impugned provisions in Section 10 of the Act in so far as they compel a deserted or cruelly treated Christian wife to live perpetually tied down to a marriage which has for all intents and purposes ceased to exist as a result of desertion and cruelty shown by the husband concerned are highly harsh and oppressive and as such arbitrary and violative of Art. 14 of the Constitution of India?
Ratio Decidendi: 1. The Court held that the impugned provisions in Section 10 of the Act in so far as it obliges a Christian wife to prove adultery in addition to cruelty as without adultery would have entitled her to a divorce measa et toro or desertion without reasonable excuse for two years or upwards is totally arbitrary and violative of the right to equality under Art. 14 and right to live with human dignity and personal liberty under Art. 21 of the Constitution of India. 2. The Court also held that the impugned provisions in so far as they compel a deserted or cruelly treated Christian wife to live perpetually tied down to a marriage which has for all intents and purposes ceased to exist as a result of desertion and cruelty shown by the husband concerned are highly harsh and oppressive and as such arbitrary and violative of Art. 14 of the Constitution of India.
Final Decision: The Court allowed the Original Petitions and held that Section 10 of the Act in so far as it obliges a Christian wife to prove adultery in addition to cruelty as without adultery would have entitled her to a divorce measa et toro or desertion without reasonable excuse for two years or upwards is totally arbitrary and violative of the right to equality under Art. 14 and right to live with human dignity and personal liberty under Art. 21 of the Constitution of India. The Court also held that the impugned provisions in so far as they compel a deserted or cruelly treated Christian wife to live perpetually tied down to a marriage which has for all intents and purposes ceased to exist as a result of desertion and cruelty shown by the husband concerned are highly harsh and oppressive and as such arbitrary and violative of Art. 14 of the Constitution of India.
Based on the provided legal document, the primary focus is on the constitutional validity of provisions related to divorce among Christians under the Indian Divorce Act, 1869, and the rights of Christian women to seek dissolution of marriage on various grounds. The document discusses the grounds for divorce, the discrimination based on religion and gender, and the need for reform in the law.
Regarding your query about whether financial claims connected to marriage can be decided in the same proceedings, the document does not explicitly address the issue of financial claims or ancillary matters such as maintenance, alimony, or property division. However, in general legal practice, proceedings for divorce or dissolution of marriage often include or can be accompanied by claims for financial relief, such as maintenance or division of property, especially when such claims are directly related to the dissolution of the marriage.
Given the context of the proceedings discussed, which are primarily concerned with the grounds for divorce and the constitutionality of the law, it is possible and often customary for related financial claims to be decided within the same proceedings, provided the court has jurisdiction and the parties raise such claims appropriately. This integrated approach ensures comprehensive resolution of all matrimonial issues, including financial claims, in a single proceeding.
In conclusion, while the document focuses on the grounds and constitutional issues surrounding divorce, it is consistent with general legal principles that financial claims connected to marriage can be adjudicated in the same proceedings for divorce, unless specific procedural or legal restrictions apply.
RAMAKRISHNAN, J.:- The constitutional validity of Section 10 of the Indian Divorce Act, 1869 (for short "the Act") which regulated divorce among Christians in India for a century and a quarter is directly under challenge in the two Original Petitions at the instance of two Christian women on the ground that the provisions in Section 10 are violative of the fundamental rights guaranteed to them and other similarly situated Christian women udder Articles 14, 15 and 21 of the Constitution of India.
2. Mary Sonia -achariah, petitioner in O. P. No. 5805• of 1988 is a Syrian Christian governed by the Act. At the time of filing the O. P. she was aged 36 and was working as an Asst. Warden at Corpus Christi School, Kottayam. She was married to one P.C. -achariah on 6-1-1972 at Emmanual Marthoma Church, Pazhanni, Thrissur according to the customary rites and ceremonies of the church. A daughter, Elizabeth -achariah alias Kittu was born out of the said wedlock on 16-9-1974. On the basis of Exts. P3 and P 4 letters the petitioner has specifically pleaded that her Husband has taken an irreversible decision to live with an English lady whom he met while in Nairobi where he was employed from 1977 onwards, deserting the petitioner and her chip once and for all. Petitioner has specifically, alleged that from 1978 onwards her husband has deserted her and has not cared to cohabit with her or to perform any of the marital obligations and to maintain her and her daughter. She has further alleged in the petition that she is not even aware of the whereabouts of her husband at present.
3. Originally, Union of India, State of Kerala and the husband of the petitioner alone were impleaded as parties to the O. P. Later certain individuals, association of persons, cultural and social institutions such as Suhruth, Reg. No. 404/ 88, Kottayam, Kerala Mahila Samajam, Vazhuthacaud, Trivandrum, Jonakiya Vimochana Viswas Prasthanam belonging to the Central Kerala CSI, Diocese YMCA of Bombay; Indian Federation of Women Lawyers, Kerala Branch, Christian Institute for the study of Religion and Society, Poulose Mar Poulose, Bishop, Church of East in his capacity as Chairperson, World Student Christian Federation, Fr. K. V. Poulose, Vicar, St. Thomas Orthodox Church, Chenganacherry, Kottayam etc., have got themselves impleaded in the O. P. Over and above the persons so got impleaded as additional respondents, Peoples Council for Social Justice, Layam Road, Kochi has also got impleaded as an intervenor. Fr. K. V. Poulose and Shri M. Prabha, Advocate representing the POSJ were in fact present in Court and have made their submissions strongly supporting the case of the petitioner. Bishop Poulose Mar Poulose was also present in Court and in his behalf Fr. K. V. Poulose has submitted that Bishop also supports the prayers in the two O. Ps.
4. Ammini E. J., petitioner in O. P. No. 4319 of 1991 is also a Christian governed by the Act. At the time of filing the O. P. the petitioner was aged 39 and was working as a High School Assistant at the Government High School, Pattambi. She was married to the third respondent on 14-2-1980 at St. Peter St. Paul Church, Amaravathy, Kochi, according to the rites, ceremonies and customs of the said church. According to the petitioner they lived together as husband and wife till 18-7-1981 and thereafter the third respondent has deserted her with the intention of abandoning her permanently against her wish. It is her further case that during the period they lived together as husband and wife, the third respondent's conduct towards the petitioner was very cruel and he had subjected the petitioner to insults, abuses and accusations of adulterous conduct even in the presence of public, her colleagues, students and relatives. She has alleged that the desertion, insults, abuses and accusations of adulterous conduct and threats of physical violence had made the continuance of the married life impossible. Before filing of this O. P., petitione
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