SANJAY KISHAN KAUL, J.

The petitioner, an advocate by profession, a married one, seeks to assail the provision of Section 7-A of the Hindu Marriage Act, 1955 as amended by the Hindu Marriage (Madras Amendment) Act, 1967.

2. The plea of the petitioner is that it is after a great debate and discussion, the Hindu Marriage Act, 1955 was enacted, setting out the essentials of a Hindu marriage. In that context, the petitioner has referred to the provision of Section 7, which reads as under:

'7. Ceremonies for a Hindu marriage.- (1) A Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party thereto.

(2) Where such rites and ceremonies include the saptapadi (that is, the taking of seven steps by the bridegroom and the bride jointly before the sacred fire), the marriage becomes complete and binding when the seventh step is taken.'

3. It is accepted by the petitioner that in terms of the provision of the aforesaid Section, a Hindu marriage may be solemnized in accordance with the customary rites and ceremonies as per sub-section (1) of Section 7. Sub-section (2) of Section 7 only stipulates where saptapadi is included in such rights and ceremonies, how the process of saptapadi is completed.

4. The petitioner also refers to Section 3, definition clause, where sub-section (a) defines ' custom' and 'usage' as under:

'3(a) the expression ' custom' and ' usage' signify any rule which, having been continuously and uniformly observed for a long time, has obtained the force of law among Hindus in any local area, tribe, community, group or family.'

5. It is the say of the petitioner by reference to the observations of Lord Denning, in R v. Secretary of State for Foreign and Common Wealth Affairs (1982) 2 All E.R. 118 that customary laws are not written down, but they are handed down by tradition from one generation to another and they are well established and have the force of law within the community.

6. The grievance of the petitioner is that introduction by the State Amendment of Section 7-A clearly seeks to bring the philosophy of political movement to provide for a marriage which is not in conformity with the customary rites and ceremonies and that too without much debate. It is his plea that this provision is, thus, ultra vires the provision of Section 7 read with Section 3(a) and contrary to the very tenets of Hinduism. The petitioner further states that this treats equals as unequals under Article 14 of the Constitution of India. It is stated that this is arbitrary and thus, it violates the said provision of law.

7. On hearing the petitioner appearing in person, we are unimpressed by the arguments sought to be advanced. Firstly, it must be appreciated that this is not an administrative decision to be tested in that manner, on the touch stone of arbitrariness. It is a legislative exercise and the tests for the same are different. It is not a case of legislative incompetence. We also fail to understand how it could be said that there is conflict or violation of Section 7 of the Act on account of insertion of Section 7-A by way of State amendment. Mere utterance of Article 14 of the Constitution of India is not sufficient, as there is no case of discrimination since option is available to any of the parties who want to enter into a matrimony to proceed in accordance with the original Section 7 or as per Section 7-A of the Hindu Marriage Act, 1955.

8. The settled legal position is that there is always a presumption in favour of the constitutionality of an enactment and it is the duty of the Court to uphold the constitutional validity of the statute. In Ram Krishna Dalmia v. S.R.Tendolkar, AIR 1958 SC 538, the Hon-ble Supreme Court pointed out that the burden is upon him, who challenges the constitutional validity to show that there has been a clear transgression of the constitutional principles and it is the duty of the Court to sustain that there is a presumption of constitutionality and in d