judgement:
Civil Appeal No. 2631 of 1982.
Appeal by special leave from the judgment and order dated the 3rd October, 1980 of the Delhi High Court in C. (Main) No. 184 of 1980.
Miss Lily Thomas, K section Gill and S.K. Arora, for the Appellant.
S.T. Desai and Miss A. Subhashini for the Respondent.
The following Judgments were delivered; PATHAK J.
The appellants, who belong to the Roman Catholic community, were married on December 30, 1967 in 34 Podannur in the State of Tamil Nadu under section 27 of the .
On July 26, 1979 they put in a joint petition under section 28 of the Special Marriage Act for a decree of divorce by mutual consent in the Court of the learned District Judge, Delhi.
On March 11, 1980 the trial court dismissed the petition on the ground that section 28 of the Special Marriage Act could not be availed of.
The appellants filed 'a writ petition in the High Court of Delhi which having been dismissed they proceeded in appeal to this Court.
In the appeal they applied for permission to amend the joint petition to enable them to rely upon section 7 of the read with section 1 (2) (d) of the Matrimonial Causes Act, 1973 of England.
The amendment was allowed, and the appellants filed an amended joint petition i n the trial court seeking divorce on the ground that they had been living separately for more than two years and had not been able to live together and their marriage had broken down irretrievably and therefore they were entitled to a decree of divorce under the aforesaid provisions.
On August 16, 1980 the trial court dismissed the petition holding that the appellants were not entitled to rely on section I (2) (d) of the English statute.
The appellants took the matter to the High Court or Delhi and the High Court has affirmed the view taken by the trial court.
In this appeal Miss Lily Thomas, appearing for the appellants, contends that the trial court and the High Court are wrong and that in reading section 7 of the the provisions of section I (2) (d) of the Matrimonial Causes Act, 1973 must be deemed to be incorporated therein and therefore the appellants are entitled to the benefit of the ground for divorce set forth in the latter enactment.
In deference to Miss Thomas 's vehement submissions and having regard to the importance of the question we heard her at length but we indicated that the point raised by her did not carry conviction, and we reserved judgment in order to give a fully reasoned order Shortly thereafter, Miss Thomas 's put in an application asserting that she had information that the Government of India was proposing to amend the matrimonial law in relation to the Christian community in India and praying that in the circumstances judgment may not be delivered for sometime.
There has, however, been no Change in the law since, and it is appropriate, we think, that judgment should be pronounced now without further delay.
35 The main contention raised by Miss Thomas is that the appellants are entitled to the benefit of section 7 of the and therefore, by reason of that provision, to rely on section 1 (2) (d) of the Matrimonial Causes Act, 1973.
There is no doubt that if the provisions of section 1 (2) (d) of the English statute can be read in section 7 of the and the appellants can establish that the conditions set forth in section i (2) (d) are made out the appellants will be entitled to claim a decree of divorce.
But we are not satisfied that section I (2) (d) of the English statute can be read in section 7 of the Sub sections (l) and (2) of section I of the Matrimonial Causes Act, 1973 provides: "(I) Subject to section 3 below, a petition for divorce may be presented to the court by either party to a marriage on the ground that the marriage has broken down irretrievably.
(2) The court hearing a petition for divorce shall not hold the marriage to have broken down irretrievably unless the petitioner satisfies the court of one or more of the following facts, that is to say (a) that the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent; (b) that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent; (c) that the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition, (d) that the parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition (hereafter in this Act referred to as "two years ' separation") and the respondent consents to a decree being granted; 36 (e) that the parties to the marriage have lived apart for a continuous period of at least five years immediately preceding the presentation of the petition (hereafter in this Act referred to.
as "five years ' separation).
" The circumstances set forth in sub section
(2) of section 1 constitute the basis for holding that the marriage has broken down irretrievably.
Can these provisions be deemed incorporated in section 7 of the ? section 7 provides: "7.
Subject to the provisions contained in this Act, the High Courts and District Courts shall, in all suits and proceedings hereunder, act and give relief on principles and rules which, in the opinion of the said Courts, are as nearly as may be conformable to the principles and rules on which the Court for Divorce and Matrimonial Causes in England for the time being acts and gives relief: Provided that nothing in this section shall deprive the said Courts of jurisdiction in a case where the parties to a marriage professed the Christian religion at the time of the occurrence of the facts on which the claim to relief is founded.
" The section requires that in all suits or proceedings under the the High Court and District Courts shall "act and give relief on principles and rules" which conform as nearly as may be to the principles and rules on which the Court for Divorce anc Matrimonial Causes of England acts and gives relief.
What is contemplated is the manner in which the court will exercise its jurisdiction for the purpose of disposing of a pending suit or proceeding The expression "principles and rules" does not mean the grounds on which a suit or proceeding may be instituted.
The grounds are ordinarily placed in the suit or proceeding when the petitioner comes to court and invokes its jurisdiction.
It is after the suit or proceeding is entertained that the question arises of deciding on the norms to be applied by the court for the purpose of disposing of it.
If it were otherwise, plainly there would be a conflict with section 10 of the .
For section 10 sets fourth the limited grounds on which a petition may be presented by a husband or wife for dissolution of the marriage.
37 It cannot be denied that society is generally interested in maintaining the marriage bond and preserving the matrimonial state with a view to protecting societal stability, the family home and the proper growth and happiness of children of the marriage.
Legislation for the purpose of dissolving the marriage constitutes a departure from that primary principle, and the Legislature is extremely, circumspect in setting forth the grounds on which a marriage may be dissolved.
The history of all matrimonial legislation will show that at the outset conservative attitudes influenced the grounds on which separation or divorce could be granted.
Over the decades, a more liberal attitude has been adopted, fostered by a recognition of the need for the individual happiness of the adult parties directly involved.
But although the grounds for divorce have been liberalised, they nevertheless continue to form an exception to the general principle favouring the continution of the marital tie.
In our opinion, when a legislative provision specifies the grounds on which divorce may be granted they constitute the only conditions on which the court has jurisdiction to grant divorce.
If grounds need to be added to those already specifically set forth in the legislation, that is the business of the Legislature and not of the courts.
It is another matter that in construing the language in which the grounds are incorporated the courts should give a liberal construction to it.
Indeed, we think that the courts must give the fullest amplitude of meaning to such a provision.
But it must be meaning which the language of the section is capable of holding.
It cannot ' be extended by adding new grounds not enumerated in the section.
When therefore section 10 of the specifically sets forth the grounds on which a marriage may be dissolved, additional grounds cannot be included by the judicial construction of some other section unless that section plainly intends so.
That, to our mind, section 7 does not.
We may point out that in M. Barnard vs G.H. Barnard(l) the Calcutta High Court repelled a similar contention and held that section 7 could not be construed so as to "import into Indian Divorce Jurisprudence any fresh ground for relief other than those set forth in section I()" and that "the only grounds on which a marriage may be dissolved are those set forth in section 10 of the Act. ".
The Punjab High Court in Miss Shireen Mall vs John James Taylor(2) has also taken the view that the grounds set forth in section 10 of the Indian (l) AIR 1928 Cal.
(2) AIR 38 Divorce Act cannot be enlarged by reference to section 7 of the Act.
So also has a Special Bench of the Madras High Court in T.M. Bashiam vs Victor(l) and a Single Judge of that Court in A. George Cornelius vs Elizabeth Dopti Samadanam.(2) Miss Thomas appeals to us to adopt a policy of "social engineering" and to give to section 7 the content which has been enacted in section 28 of the and section 13B of the , both of which provide for divorce by mutual consent.
It is possible to say that the law relating to Hindu marriages and to marriages governed by the presents a more advanced stage of development in this area than the .
However, whether a provision for divorce by mutual consent should be included in the is a matter of legislative policy.
The courts cannot extend or enlarge legislative policy by adding a provision to the statute which was never enacted there.
Reference is made by Miss Thomas to section 2 (ix) of the Dissolution of Muslim Marriage Act, 1939 which empowers the court to dissolve a Muslim marriage on any ground other than those already enumerated in the section "which is recognised as valid for the dissolution of marriages under Muslim law. ' ' No such provision is contained in section 10 of the .
Learned counsel of the appellants has referred us to B. Iswarayya vs Swarnam Iswarayya(3) and George Swamidoss Joseph vs Miss Harriet Sundari Edward.(4) Nothing said in those cases helps the appellants.
The first case was concerned with the question whether an appellate court can increase the amount of alimony payable by the husband to the wife without an appeal by her.
And the second deals with the question whether the Indian Courts can make a decree nisi for nullity absolute within a shorter period than that specifically mentioned in the .
(1) A.l.
R. (2) A.l.
R. (3) A.I.R. 1931 Privy Council 234.
(4) A.l.
R. 39 We are not satisfied that section 7 of the can be read to include the provisions of section I (2) (d) of the Matrimonial Causes Act, 1973.
This contention of the appellant must fail.
Learned counsel for the appellants then points out that a Christian marriage can be registered under the and that there is no reason why a marriage registered under the should not enjoy an advantage which is available to a marriage registered under the .
Reliance is placed on the constitutional prohibition against discrimination embodied in Article 14 of the Constitution.
Assuming that the marriage in this case could have been registered under the , inasmuch as it was solemnised in 1967 it was open to the parties to avail of that Act instead of having resort to the .
In the circumstances, it is not open to the appellants to com plain of the disadvantage now suffered by them.
It is also urged by the appellants that the Letters Patent jurisdiction enjoyed by the High Court in matrimonial matters is sufficiently extensive to enable the High Court to make a decree for divorce on the ground now pleaded.
We have examined the matter carefully and we do not see how that jurisdiction can be construed to include a ground which is not specifically set forth in E section 10 of the .
We are not satisfied that this appeal can succeed.
It is for Parliament to consider whether the should be amended so as to include a provision for divorce by mutual con sent.
The appeal fails and is dismissed but in the circumstances there is no order as to costs.
CHINNAPPA REDDY, J.
I agree with my brother Pathak, J. that 'mutual consent ' is not a ground for divorce under the and that the provisions of section 1(2)(d) of the British Matrimonal Causes Act, 1973 cannot be read into the merely because of section 7.
lt is unthinkable that legislation whenever made by the Parliament of a foreign state may automatically become part of the law of another sovereign State.
Legislation by incorporation can never go so far.
Whatever interpretation of section 7 was permissible before August 15.
1947 when the British Parliament 40 had plenary powers of legislation over Indian territory, no interpretation is now permissible which would incorporate post 1947 British laws into Indian law.
My brother Pathak J. has pointed out that the history of matrimonial legislation has been towards liberalisation of the grounds for divorce.
Inevitably so.
The history of matrimony itself, in the recent past, has been a movement from ritual and sacrament to reality and contract even as the history of the relationship of the sexes has been from male dominance to equality between the sexes.
But the world is still a man 's world and the laws are man made laws, very much so.
We have just heard that in an advanced country like the United States of America, the Equal Rights for Women Amendment could not be successfully pushed through for failure to obtain the support of the necessary number of States.
Our constitution makers and our Parliament have certainly done better.
We have constitutional and legal equality for the sexes.
But even so, economic and social equality between the sexes appears to be a very distant goal.
One has only to read the daily sickly reports of 'dowry deaths ' and 'atrocities on women ' to realise that women, in our country, are yet treated as commodities and play things.
The root cause of the inequality between the sexes, like other class inequalities, is their social and economic inequality.
All inequality will end when social and economic inequality ends.
It isl therefore, obvious that true equality between the sexes and else where is possible only when economic and social inequalities disappear.
Our Constitution proclaims, in the Preamble, the establishment of a socialist State where there will be justice, social, economic and political, as our constitutional goal and this is reiterated in the Fundamental Rights ' and Directive Principles ' Chapters.
But, the march towards equality ' and economic and social justice is still a 'long march ' and meanwhile, what of divorce by mutual consent ? Yes, I agree with Miss Lily Thomas that divorce by mutual consent should be available to every married couple, whatever religion they may profess and however, they were married.
Let no law compel the union of man and woman who have agreed on separation.
If they desire to be two, why should the law insist that they be one ? But I have a qualification, The woman must be protected.
Our society still looks askance at a divorced woman.
A woman divorcee is yet a suspect.
Her chances of survival are diminished by the divorce.
So, the law which grants the decree for divorce must secure for her some measure of economic 41 independence.
It should be so whatever be the ground for divorce, A whether it is mutual consent, irretrievable break down of the marriage, or even the fault of the woman herself.
Every divorce solves a problem and creates another.
Both problems need to be solved, no matter who is responsible for the break down of the marriage.
If the divorce law is to be a real success, it should make provision for the economic independence of the female spouse.
After all, Indian society today is so constituted that a Woman is generally helpless and her position become worse if she is divorced.
It is necessary that the law should protect her interest.
; even if she be an erring spouse, lest she become destitute and a dead loss to society.
N.V.K. Appeal dismissed.

summary:
The appellants, who were husband and wife belonging to the Roman Catholic Community were married under section 27 of the .
They filed a joint petition under Section 28 of the Special Marriage Act for a decree of divorce by mutual consent in the District Court.
The trial court dismissed the petition on the ground that section 28 of the Special Marriage Act could not be availed of.
The Supreme Court allowed the appellants to amend their joint petition to enable them to rely on section 7 of the read with section 1 (2)(d) of the Matrimonial Causes Act 1973 of England and to seek divorce on the ground that they had been living separately for more than two years and had not been able to live together and that the marriage had broken down irretrievably, and that therefore they were entitled to a decree of divorce.
The District Court however dismissed the petition holding that they were not entitled to rely on section 1 (2)(d) of the English Statute.
In appeal the High Court affirmed the view taken by the trial Court.
In the appeal to this court it was contended on behalf of the appellants: (1) that the trial court and the High Court were wrong and that section 7 of the incorporated the provisions of section 1(2)(d) of the Matrimonial Causes Act 1973 and that the appellants were entitled to the benefit of the ground for divorce as set forth in the latter enactment, and (2) that the Letters Patent jurisdiction enjoyed by the High Court in Matrimonial matters is sufficiently extensive to enable the High Court to make a decree for divorce.
Dismissing the appeal, ^ HELD: [By the Court] 33 Mutual consent is not a ground for divorce under the .
The provisions of section l(2)(d) of the Matrimonial Causes Act 1973 of England cannot be read into section 7 of the .
[39 A] [Per Pathak and Baharul Islam, JJ.] 1.
Whether a provision for divorce by mutual consent should be included in the is a matter for legislative policy.
The courts cannot extend or enlarge legislative policy by adding a provision to the statute which was never enacted there.
It is for Parliament to consider whether the should be amended so as to include a provision for divorce by mutual consent.
[38 C D; 39 F] 2.
The Letters Patent jurisdiction enjoyed by the High Court in matrimonial matters cannot be construed to include a ground for divorce not specifically set forth in section 10 of the .
[39 E] M. Barnard vs G.H. Barnard A.I.R. 1928 Cal. 657; Miss Shireen Mall vs John James Taylor A.I.R. T.M. Bashiam vs M. Victor A.I.R. 1970 Mad. 12; aad A. George Cornelius vs Elizabeth Dopti Samadanam A.l.
R. 1970, Mad.
approved.
[Per Chinnappa Reddy and Baharul Islam, JJ.] Legislation whenever made by Parliament of a foreign state cannot automatically become part of the law of another sovereign state.
Whatever interpretation of section 7 of the was permissible before August 15, 1947 when the British Parliament had plenary powers of legislation over Indian territory, no interpretation is now permissible which would incorporate post 1947 British laws into the Indian laws.
[39 G H; 40 A]


judgement:
Civil Appeal No. 2050 of 1973.
Appeal by special leave from the judgment and order dated the 14th October, 1971 of the Andhra Pradesh High Court in Writ Appeal No. 691 of 1970.
B. Parthasarthi for the Appellant.
P.N. Poddar for Respondent No. 2.
section Markakandeya for Respondent No. 6.
The Judgment of the Court was delivered by BALAKRISHNA ERADI, J.
This appeal preferred by special leave is against the judgment of the Division Bench of the Andhra Pradesh High Court setting aside the decision of a learned single judge of that Court and dismissing a writ petition filed by the present appellant.
The appellant, who was working as an officer of the Forest Department in the State of Andhra Pradesh, approached the High 161 Court challenging the provisional integrated gradation list of Forest officers of the former Andhra and Hyderabad States published under the provisions of the States Reorganization Act, as annexure to a State Government order dated January 27, 1962.
The contentions raised by the petitioner in the writ petition were mainly two fold.
Firstly, it was urged that the inter se seniority between the appellant and the 6th respondent, both of whom originally belonged to the Andhra Cadre, had been wrongly fixed in the provisional gradation list by showing the 6th respondent as senior to the appellant, whereas the appellant was legally entitled to seniority over the 6th respondent.
Secondly, it was contended that respondents Nos. 3, 4, 5, 7 and 8 who were officers allotted to the State of Andhra Pradesh from the Telengana region of the former Hyderabad State, had been erroneously assigned ranks above the appellant in the integrated gradation list in violation of the principles laid down by the Government of India for equation of posts and the fixation of inter se seniority between the persons drawn from the two sources.
By the time the writ petition came up for hearing before the learned single judge, the Central Government had already set right the appellant 's grievance concerning his ranking and the seniority in relation to respondents 3, 4, 5, 7 and 8.
It therefore became unnecessary for him to pursue the second contention aforementioned and hence he pressed before the learned single judge only the plea concerning his claim for seniority over the 6th respondent was well founded.
Accordingly, the learned single judge found that the contention put forward by the appellant that he was entitled to seniority over the 6th respondent was well founded.
Accordingly, the learned judge allowed the writ petition and issued a writ of mandamus directing the State Government and the Government of India to modify the gradation list by showing the appellant as senior to the 6th respondent.
The 6th respondent carried the matter in appeal before a Division Bench of the High Court by filing Appeal No. 691 of 1978.
The Division Bench took the view that since the prayer contained in the writ petition was for the issue of a writ of mandamus directing respondents No. 1 and 2 to forbear from implementing the provisional gradation list published along with the Government order dated January 27, 1962, and inasmuch as the petitioner had not pressed the said prayer for quashing of the list in so for as it related to the officers of Telengana region (respondents 3, 4, 5, 7 and 8), the writ petition should have been dismissed on that short ground and the question relating to inter se seniority between the petitioner and the 162 6th respondent ought not to have been decided by the learned single judge.
In this view, the Division Bench allowed the writ appeal, set aside the order passed by the learned single judge and dismissed the writ petition.
The appellant has come up to this Court questioning the legality and correctness of the aforesaid reasoning and conclusion of the Division Bench.
It is true that the writ petition contained a prayer for the quashing of the gradation list in so far as it related to the inter se ranking of the petitioner vis a vis respondents Nos. 3 to 8 and the petitioner (appellant) had also sought the issuance of a writ of mandamus directing respondents Nos. 1 and 2 to forbear from implementing or acting upon the said gradation list.
But subsequent to the institution of the writ petition, the Central Government has refixed the ranks of respondents Nos. 3, 4, 5, 7 and 8 (Telengana officers) and placed them below the appellant thereby redressing the grievance of the appellant in so far as it pertained to the ranking of the aforesaid respondents.
It therefore became unnecessary for the appellant to pursue his claim for relief with respect to the ranks assigned to those five respondents.
It was under those circumstances that the appellant submitted before the learned single judge of the High Court, at the time of final hearing of the writ petition, that he was pressing the writ petition only in so far as it related to his claim for seniority over the 6th respondent.
We fail to see how the fact that the appellant had sought in the writ petition the issuance of a writ of mandamus directing respondents 1 and 2 to forbear from implementing or acting upon the provisional gradation list will operate to preclude him from seeking a lesser relief, namely, the quashing of the list only so far as it pertains to the fixation of the inter se seniority between himself and the 6th respondent.
The material facts and circumstances had undergone a substantial change subsequent to the filing of the original petition and it was in consequence thereof that it had become unnecessary for the petitioner to pursue his original prayer for the grant of a larger relief.
Besides ignoring this crucial aspect, the Division Bench of the High Court has also lost sight of the well established principle that in an action where a party has prayed for a larger relief it is always open to the court to grant him any smaller relief that he may be found to be entitled in law and thereby render substantial justice.
The Court can undoubtedly take note of changed circumstances and suitably mould the relief to be granted to the party concerned in order to mete out justice in the case.
As far as possible the anxiety and endeavour of the Court should be to remedy an injustice when it is 163 brought to its notice rather than deny relief to an aggrieved party on purely technical and narrow procedural grounds.
We do not, therefore, find it possible to uphold the view expressed by the Division Bench of the High Court that since the writ petition was not pressed in so far as it related to the officers belonging to the Telengana region the question of inter se seniority between the writ petitioner and the 6th respondent should not have been considered by the single judge and the writ petition should have been dismissed.
Accordingly, we set aside the judgment of the Division Bench and remand the writ appeal to the High Court for fresh disposal in accordance with law.
The parties will bear their respective costs in this appeal.

dataset_name: IN-Abs

summary:
The appellant, an officer of the Forest Department challenged the provisional integrated gradation list of Forest Officers of the former Andhra and Hyderabad States published under the provisions of the States Reorganisation Act, 1947, in his writ petition, contending that (a) the inter se seniority between the appellant and the 6th respondent, both of whom originally belonged to the Andhra Cadre, had been wrongly fixed by showing the 6th respondent as senior to the appellant whereas the appellant was legally entitled to seniority over the 6th respondent, and (b) that respondent nos.
3, 4, 5, 7 and 8 officers allotted to the State of Andhra Pradesh from the Telengana region of the former Hyderabad State, had been erroneously assigned ranks above the appellant in violation of the principles laid down by the Government of India for equation of posts and fixation of inter se seniority.
During the pendency of the writ petition the Central Government set right the appellant 's grievance concerning his ranking and seniority in relation to respondents 3, 4, 5, 7 and 8.
When the writ petition came up for hearing the appellant pressed only his claim for seniority over the 6th respondent and as the contention was well founded, the learned Single Judge, allowed the writ petition and issued a writ of mandamus directing the Government of India to modify the gradation list by showing the appellant as senior to the 6th respondent.
In the appeal to the Division Bench by the 6th respondent, the Division Bench took the view that since the prayer contained in the writ the petition was for the issue of a writ of mandamus directing respondents nos.
1 and 2 to forbear from implementing the provisional gradation list published alongwith the Government Order dated January 27, 1962 and as the appellant had not pressed the prayer for quashing of the list in so far as it related to the officers of Telengana region viz. respondents 3, 4, 5, 7 and 8, the writ petition should have been dismissed on that short ground and the question relating to the inter se seniority between the appellant and the 6th respondent ought not to have been decided.
The Division Bench allowed the writ appeal, set aside the order passed by the single Judge and dismissed the writ petition.
Allowing the appeal to this Court, 160 ^ HELD: In an action where a party has prayed for a larger relief it is always open to the Court to grant him any smaller relief that he may be found to be entitled to in law and thereby render substantial justice.
The Court can take note of changed circumstances and suitably mould the relief to be granted to the party concerned in order to mete out justice.
As far as possible the anxiety and endeavour of the Court should be to remedy an in justice when it is brought to its notice rather than deny relief to an aggrieved party on purely technical and narrow procedural grounds.
[162 G 163 A] In the instant case the writ petition contained the prayer for the quashing of the gradation list in so far as it related to the inter se ranking of the appellant vis a vis respondents nos.
3 to 8 and the appellant had also sought the issuance of a writ of mandamus directing respondents nos.
1 and 2 to forbear from implementing or acting upon the said gradation list.
Subsequent to the institution of the writ petition the Central Government had refixed the ranks of respondents nos.
3, 4, 5, 7 and 8 and placed them below the appellant thereby redressing the grievance of the appellant in so far as it pertained to the ranking of the said respondents.
It, therefore, became unnecessary for the appellant to pursue his claim for relief with respect to the ranks assigned to those five respondents.
It was under those circumstances that the appellant submitted before the single Judge at the time of final hearing of the writ petition that he was pressing the writ petition only in so far as it related to his claim for seniority over the 6th respondent.
This will not operate to preclude him from seeking a lesser relief namely the quashing of the list only in so far as it pertains to the fixation of the inter se seniority between himself and the 6th respondent.
[162 B F]