JUDGEMENT :- These two appeals involve one common question of law and are therefore disposed of by this common judgment. The short point for my determination is whether Art. 4 of Decree No. 35, 461 (hereinafter for brevity sake referred to as "Art. 4") is ultra vires the Constitution and is therefore null and void and inoperative in law.

2. The question arises from the dismissal of two suits for divorce. The parties are Roman Catholics. The lower courts held that in view of "Art. 4" the courts had no jurisdiction to grant divorce to the parties. The arguments of Shri Usgaokar, learned advocate for the appellants, in both the cases, are as follows :-

That admittedly the law of this territory from 3-11-1910 was that every citizen of this territory was entitled to get a divorce without distinction of any caste or religion provided that the condition of clause 4 of the Decree dated 3-11-1910 was satisfied; that it is not disputed in the present case that the condition of clause 4 of Art. 4 of the Decree of 3-11-1910 is in force in this territory in view of the Goa, Daman and Diu Administration Act; that "Art. 4" creates a discrimination based on religion between two citizens similarly situated and that therefore the said Article should be struck down.

3. "Art. 4" reads as follows :-

"Em harmonia com as propriedades essenciais do matrimonio catolico, enten-de-se que, pelo proprio facto da celebracao do casamento canonico, depois de entrar em vigor o presente decreto, os conjures renunciarao a faculdade civil de requerem o divorcio, que por isso nao podera ser decretado pelos tribunals civis em relacao a tal casamento."

In view of the decree of 3-11-1910 it is clear that the spouses had the right of getting a divorce according to civil law and that such right was taken away only from those Catholic persons who had married canonically under Catholic rites and not from the Catholics who had married under the civil law. This restriction Shri Usgaokar argues imposed on the Catholics is founded purely on religious grounds.

4. I find that the argument of Shri Usgaokar carries considerable weight. The learned trial Judge opined, "that if two Catholics voluntarily perform the marriage according to the religious rites of the Catholics, it cannot be said that the law is discriminatory." On the contrary, according to him, the provision of law is respecting the religious feelings of the Catholic people and is giving nothing but protection to the same feelings. I have not understood the ratio behind this reasoning. If two persons following the Catholic faith are married according to Catholic rites they will be bound by a canon law to remain forever united and that duty flows from the canon law which those two persons must, if they are good Catholics and want to remain so, follow till the end of their lives. I see no reason why interference of the State is necessary to compel two persons who, because of their faith in Catholic religion are bound by canon law as long as they follow that faith, to remain together under any circumstances. A law which divests some citizens from their civil rights under the law of the State purely on religious considerations is

to my mind unconstitutional. The renunciation of their civil rights when two persons undergo a marriage according to Catholic rites would be of no relevance if that renunciation flows from canon law, because in that case it could be said that they agreed to submit themselves to the canon law and such renunciation would be binding on them as far as the canon law could impose it upon them but if the law of the land provides that

notwithstanding the fact that the canon law imposes such a renunciation a party is not bound by such renunciation and can obtain a divorce under civil law, any law of the State which tries to enforce such renunciation arising purely on grounds of religion cannot be considered to be a good law. As rightly pointed out by Shri Usgaonkar, two Catholic persons may marry according to

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