judgement:
ION: Criminal Appeals Nos. 20 and 21 of 1957.
Appeals by special leave from the judgment and order dated September 14, 1955, of the Allahabad High Court (Lucknow Bench) at Lucknow in Criminal Appeals Nos. 374 and 376 of 1956, arising out of the judgment and order dated the April 24, 1954, of the Sessions Judge, Lucknow, in Sessions Trial No. 106 of 1951.
R. L. Anand and section N. Anand, for the appellant in Cr. A. No. 20 of 1957.
N. C. Chatterjee and D. N. Mukherjee, for the appellant in Cr. A. No. 21 of 1957.
H. R. Khanna and R. H. Dhebar, for the respondent.
May 14.
The Judgment of the Court was delivered by GAJENDRAGADKAR J.
Are the appellants section Gangoli and P.R. Chaudhri (hereafter called appellants I and 2 respectively) public servants under section 2 of the Prevention of Corruption Act, 1947 (Act II of 1947) (hereafter called the Act) ? That is the short question which arises for our decision in the present appeal.
That question arises in this way.
Chaudhri had been posted as Assistant Permanent Way Inspector, Sultanpur, East Indian Railway, in March, 1948, in the Lucknow E.I.R. Division.
Gangoli was posted as Assistant Pay Clerk in the Lucknow E.I.R. Division during the same period.
The case against the appellants was that they had committed an offence under section 120B of the Indian Penal Code and section 5(2) read with sections 5(1)(c) and 5(1)(d) of the Act.
It 292 appears that in accordance with the Pay Commission 's Report a sum of Rs. 16,685 was entrusted to appellant No. 2 by the railway department to be disbursed among Class IV staff working under appellant No. 1.
This payment had to be made in the presence of, and was to be attested by, appellant No. 1.
According to the prosecution both the appellants had entered into a criminal conspiracy to misappropriate a part of the said government amount entrusted to appellant No. 2 by paying to the respective members of Class IV staff lesser amounts than those to which they were entitled and by making entries in the pay sheets which purported to show that the due amounts had been paid to them.
In accordance with this conspiracy payment was made on March 11, 1948, in a running train between Faizabad and Chilbila and the entries in the pay sheets show that the whole of the amount of Rs. 16,591 had been paid to 216 employees.
The entries also show that the payment had been made by appellant No. 2 and the same had been attested by appellant No. 1.
In fact the whole amount had not been disbursed to the employees who in all were paid Rs. 1,555 less.
In this manner the two appellants had misappropriated the sum of about Rs. 1,555 and had falsified the paysheets in pursuance of their conspiracy.
Within a few days of the said payment the employees became suspicious because they learnt that persons recruited on the same day had been paid larger amounts as arrears.
Thereupon they approached the higher officers and made a complaint to them.
They were advised to present their grievance in writing and as a result some of the employees did present applications in writing complaining that they had not received the due payment of their arrears.
These representations led to an enquiry and Mr. Dalip Singh in fact recorded some of the statements OD April 6 and 7, 1948.
The prosecution alleges that this development alarmed appellant No. 1 and he tried to hush up the matter by calling all the men together and paying them the amounts which had been previously wrongfully deducted from their arrears.
It is the prosecution case that on this day three documents were 293 executed, Exs. 5, 10 and 11, which would clearly show that the appellants had committed the offences charged against them.
Both the appellants denied the charges.
They pleaded that they had not entered into any conspiracy and it was their suggestion that they had been falsely implicated in the present case.
Appellant No. 1 pleaded that the case against him had been started, and false evidence had been secured by H.N. Das with the aid of Shambu because relations between him and Das were not friendly.
Appellant No. 2 pleaded that he had been falsely implicated because, contrary to the suggestion of the police, he had refused to implicate appellant No. 1.
According to them the evidence adduced by the prosecution was interested and false, and the documents produced by it were either fabricated or irrelevant.
In support of its case the prosecution examined 44 witnesses, relied upon the three documents Exs.
5, 10 and 11 and urged that the charges framed against the appellants were clearly established by the said evidence.
The learned Sessions Judge at Lucknow who tried the case against the appellants agreed with the unanimous opinion of the assessors and held that the charges framed against the appellants had been proved beyond a reasonable doubt file accordingly convicted them of the said offences and sentenced appellant No. 1 to suffer rigorous imprisonment 'for three years and appellant No. 2 to suffer rigorous imprisonment for two years.
This order of conviction and sentence was challenged by the appellants by preferring appeals in the High Court of Judicature at Allahabad.
These appeals, however, failed and the High Court substantially agreed with the conclusions of the learned trial judge.
Mr. Justice Kidwai who beard these appeals no doubt partly accepted the defence plea and held that Das was not a reliable witness and that he might have been responsible for the fabrication of exhibit 10.
The learned judge also found that Shambu was likewise an unreliable witness.
Even so it was held that the evidence of gangmen was on the whole satisfactory and that the 204 documents Exs.
5 and I 1 corroborated the oral evidence adduced by the prosecution.
In the result the order of conviction and sentence passed against the appellants by the trial judge was confirmed.
It is against this order passed by the High Court that the appellants have preferred the present appeals by special leave; and the only point which they have raised before us is that their conviction and sentence are illegal because they are not public servants under section 2 of the Act.
Section 2 of the Act provides that for the purposes of this Act public servant means a public servant as defined in section 21 of the Indian Penal Code.
It is not disputed that under section 21 the appellants are public servants.
The East Indian Railway which has employed the appellants was at the material time owned by the Government of India and managed and run by it, and so if the status of the appellants had to be judged at the material date solely by reference to section 21 of the Code there would be no difficulty in holding that they are public servants as defined by the said section.
It is, however, urged that, for determining the status of a railway servant, it is necessary to consider section 137 of.
the Indian Railways Act, 1890 (Act 9 of 1890).
It may be recalled that when this Act was passed almost all the railways in India were owned and managed by public limited companies and as such railway servants as defined by section 3(7) of the Railways Act could not be treated as public servants under section 21 of the Code.
After the railways were nationalised and taken over by the Government of India, this position has materially altered.
But prior to the nationalisation of railways, the position was that railway servants as such did not fall under section 21 of the Code.
That is why section 137(1) and (4) purported to bring them within the definition of public servants contained in the said section.
Sub section
(1) of section 137 provides that every railway servant shall be deemed to be a public servant for the purposes of ch.
IX of the Indian Penal Code.
The effect of this sub section is to treat railway servants as public servants under section 21 for the purpose of offences relating to public servants which are dealt with by sections 161 to 171 is ch.
IX of the Code.
It is thus clear that the 295 result of this provision was to treat railway servants as public servants even though they did not satisfy the requirements of the definition of section 21.
Having provided for the extension of the said definition to railway servants for the purposes of ch.
IX of the Code, subs.
(4) prescribed that notwithstanding anything contained in section 21 of the Indian Penal Code a railway servant shall not be deemed to be a public servant for any of the purposes of that Code except these mentioned in sub section
It is on this sub section that the appellants ' argument is based.
It is urged by Mr. B. L. Anand that this sub section clearly provides that railway servants shall not be deemed to be public servants except for the purposes of ch.
IX; and since the appellants had not been charged with any of the offences in ch.
IX of the Code they cannot be treated as public servants for the offences under sections 5(1) and 5(2) of the Act.
It is true that these two sub sections have been amended by Act 17 of 1955.
Sub section
(4) has been deleted and sub section
(1) now provides that every railway servant being a public servant as defined in section 21 of the Indian Penal Code shall be deemed to be a public servant for the purposes of ch.
1X and section 409 of that Code.
In other words, under the amended provision of section 137(1) railway servants would be deemed to be public servants under section 21 of the Indian Penal Code only for the purpose of eh.
IX and section 409 of that Code.
We are, however, concerned with the provisions of section 137 prior to its amendment in 1955.
Now section 137, sub section
(4) opens with the non obstante clause and expressly states that a railway servant shall not be deemed to be a public servant for any of the purposes of that Code subject of course to the exception mentioned in sub section
The argument is that the non obstante clause has the effect of excluding the application of section 21 of the Code in all cases except those falling under ch.
IX of the Code; and it is urged that since the offences charged against the appellants are outside ch.
IX of the Code, sub section (4) creates a bar against treating them as public servants for the purpose of the said offences.
This argument, however, ignores the relevant words " for any 296 of the purposes of that Code" used in sub section
These words indicate that the bar created by sub section
(4) applies, and is confined, to the purposes of that Code and cannot be extended beyond the said purposes.
What subs.
(4) really provides is that if a railway servant is charged for an offence under the Indian Penal Code and the said offence is outside ch.
IX of the Code he cannot be treated as a public servant.
This sub section does not purport, or intend to make any provision in respect of offences which are outside the Penal Code, In respect of such offences neither sub section
(1) nor sub section
(4) of the Railways Act would apply, and the question as to whether railway servants fall within the mischief of the Act must be decided in the light of the provisions of the said Act itself.
That takes us to the question whether the appellants can be said to be public servants under section 2 of the Act.
section 2, as we have indicated, in substance incorporates in itself the definition of a public servant contained in section 21 of the Indian Penal Code.
There can be no doubt that the effect of section 2 of the Act is that the status of accused persons has to be determined by the application of section 21 of the Indian Penal Code as if the said section had been included in the Act.
If that be so the appellants cannot resist the conclusion that they are public servants under section 2 of the Act.
The contention that because section 2 of the Act refers to section 21 of the Indian Penal Code the bar created by section 137(4) of the Railways Act would inevitably come into operation is unsound.
The said bar can be invoked only if the status of the accused person is being determined for any purposes of the Code other than those of ch.
In the present case the main offences charged are under the Act and not under the Code, and so section 137.(4) in inapplicable.
With regard to the construction of section 137(4) there is another consideration which may be indicated.
section 137(1) brings within the definition of section 21 of the Code railway servants who but for it would not have satisfied the tests laid down in section 21.
The deeming provision of sub section
(1) would be clearly inappropriate 297 and unnecessary if the railway servants concerned could be treated as public servants under section 21 itself.
In other words, railway servants employed by the railway administration owned and conducted by the Government of India would be public servants under section 21 as such without recourse to the statutory fiction introduced by section 137(1).
Having provided for this statutory fiction by sub s.(1), sub section
(4) purports to cover the same ambit and to deal with the same class of railway servants and it provides that this class of persons shall not be deemed to be public servants except as mentioned in sub section
This negative statutory fiction is only intended to emphasise the fact that persons who are treated as public servants by virtue of sub section
(1) can be dealt with only under the provisions of ch.
II of the Code and no other.
Could it have been intended by the Legislature that sub section
(4) should exclude the application of the provisions of the Code other than those contained in ch.
IX to railway servants who would be public servants under section 21 without the aid of sub section
(1) of section 137 ? Prima facie such an intention cannot be attributed to the Legis lature.
It is true that the non obstante clause lends some assistance to the argument of the appellants that with the exception of the provisions of ch.
1X, section 21 of the Code would be inapplicable to railway servants; but the said non obstacle clause cannot prima facie be wider in its scope than sub section
(1) of the card section.
The said non obstante clause has apparently been inserted ex abundanti cautela (1) to clarify the effect of section 137(1).
The two subsections introduce a positive and a negative fiction respectively and thereby achieve the same result.
However, since we are concerned with the provisions of the Act and not with any provisions of the Code other than ch.
11 it is unnecessary to pursue this point any further and to express a definite opinion on this aspect of the matter.
We must now refer to the decisions to which our attention was invited.
The first case on which Mr. Anand relied is the decision of the Punjab High (1) ; Rai Bahadur Kanwar Raj Nath & Ors.
vs Pramod C. Bhatt, Custodian of Evacuee Property.
38 298 Court in Devi Ram Deep Chand vs The State (1).
In that case the accused were goods clerks employed by the railway and they were being prosecuted in the court of a First Class Magistrate on charges under section 408 of the Penal Code.
It was urged on their behalf that the offences alleged against them were in substance offences under section 5 of the Act, and that they could be tried by a special judge alone.
That is why the High Court was moved for a transfer of the case against them from the court where it was pending to the court of the special judge.
From the judgment of the High Court it clearly appears that the learned Assistant Advocate General intimated to the Court that the prosecution did not propose to frame or prove a charge against the appellants under section 5 of the Act.
Therefore section 2 of the Act did not really fall to be construed by the court; and so the observations made by Dulat, J., that if the petitioners are not public servants within the meaning of section 21 of the Penal Code they cannot be called public servants for the purposes of Act 2 of 1947, is clearly orbiter.
If, however, this observation was intended to be a decision on the point, it must, with respect, be held to be based on a misconstruction of section 137(4).
Mr. Anand has also fairly invited our attention to two decisions of this Court Ram Krishan vs The State of Delhi (2) and C. A. Montorio vs The State of Ajmer( ') which are prima facie against his contention.
In the first of these two decisions the appellants had been charged under section 120B of the Indian Penal Code for criminal conspiracy to cause offence of criminal misconduct punishable under section 5(2) of the Act to be committed by Madan Lal as also under that section read with section 116 of the Code.
They had been convicted by the special judge on both the counts and their conviction had been upheld by the High Court.
In their appeal before this Court one of the points raised by the appellants was that Madan Lal was not a public servant within the meaning of the Act.
It appears that the offence in question had been committed on (1) A. I. R. 1954 Punj 189.
(2) ; (3) ; 299 December 29, 1951, and the argument was that under section 137(1) and (4) Madan Lal who was a railway servant could not be held to be a public servant under section 2 of the Act.
Chandrasekhara Aiyar, J., who delivered the judgment of the Court, cited section 137(1) and added that sub section
(4) had been omitted by the amendment of 1955.
Then the learned judge referred to section 2.
of the Act and concluded thus: " The result is that before the amendment railway servants were treated as public servants only for the purpose of ch.
IX of the Indian Penal Code but now as the result of the amendment all railway servants have become public servants not only for the limited purpose but generally under the Prevention of Corruption Act.
" With respect, it may be pointed out, that this observation seems to give to the amended provisions of section 137 of the Railways Act retrospective effect.
The question of the construction of the relevant sections does not appear to have been fully argued before this Court and it has not been considered.
It is nevertheless true that in respect of an offence committed in 1951 Madan Lal was hold to be a public servant under section 2 of the Act.
In the case of Montorio (1) the main point raised before this Court was whether the accused was a public servant under section 21 of the Code and that was considered by this Court; in dealing with that question this Court construed section 21 and held that the appellant was an officer within the meaning of section 21(9) and therefore a public servant within the meaning of section 21.
Incidentally reference has been made to the earlier decision of this Court in the case of Ram Krishan (2) and it has been observed that the said decision " lays down that before the amendment of section 137 of the Rail ways Act, by Act 17 of 1955, railway servants were treated as public servants only for the purposes of ch.
IX of the Indian Penal Code but in any event they were public servants under the Prevention of Corruption Act.
" With respect, this latter statement does not appear to be borne out by the judgment in the case of Ram Krishan (2).
(1) ; (2) ; 300 Going back to section 2 of the Act once more we must hold that in defining a public servant it enacts the same definitions as section 21 of the Indian Penal Code and under this interpretation of the section, the appellants undoubtedly are public servants.
The result is the courts below were right in holding that the appellants could be properly charged and tried for offences under section 5(2) read with section 5(1)(c) and section 5(1)(d) of the Act.
The validity of the charge under section 120B has not been and cannot be challenged.
Mr. Anand for appellant No. 1 and Mr. Chatterjee for appellant No. 2 appealed to us to reduce the sentence passed against their clients.
It was urged in support of this plea that though the charge against them was in respect of a large amount of Rs. 1,555 evidence had been adduced to prove misappropriation of Rs. 218 which is a much smaller amount.
We do not think that in the circumstances of this case the actual amount shown to have been misappropriated has a decisive or even a material bearing on the question of sentence.
The positions respectively occupied by the appellants, the relations between them and the Class IV servants, the method adopted by the appellants in committing the offence and the other circumstances have all been considered by the courts below in passing concurrently the respective orders of sentence against the appellants.
In our opinion there is no justification for interfering with the said orders.
The appeals accordingly fail and are dismissed.
The appellants to surrender to their bail bonds.
Appeals dismissed.

summary/full:
The two appellants, who were railway servants under the Government, were put up on trial under section 120B of the Indian Penal Code and section 5(2) read with section 5(1)(c) and 5(1)(d) of the Prevention of Corruption Act, 1947.
The Sessions judge who tried the case found, in agreement with the unanimous opinion of the assessors, the appellants guilty and sentenced appellant No. i to rigorous imprisonment for three years and appellant No. 2 to rigorous imprisonment for two years.
The High Court on appeal affirmed the order of conviction and sentences passed on the appellants.
It was contended on behalf of the appellants in this court that the order of conviction and the sentences passed on them were illegal as they were not public servants under section 2 Of the Prevention of Corruption Act, 1947.
Held, that it was apparent from the words " for any of the purposes of that Code " used by section 137(4) Of the Indian Railways Act, 1890, as it stood prior to its amendment in 1955, that the bar created by that sub section applied, and was confined, to the purposes of the Indian Penal Code and could not be extended beyond its provisions.
In respect of offences other than those under the Code, therefore, neither sub section
(1) Of section 137, which applied only to offences under ' Ch.
IX of the Code, nor sub section
(4) of that section could apply and the question whether a railway servant charged with offences under the Prevention of Corruption Act, 1947, was a public servant or not must be, decided under section of that Act.
29i Section 2 of the Prevention of Corruption Act adopts, the definition of a public servant contained in section 21 Of the Indian Penal Code, and since the main offences charged against the appellants were under that Act, and not under the Code, section 2 Of the Act would apply and they would be public servants within the meaning thereof.
Devi Ram Deep Chand vs The State, A.I.R. 1954 Punj.
189 disapproved.
Ram Krishan vs The State of Delhi, ; and C. A. Montorio vs The State of Ajmer, ; , considered.


judgement:
Special Leave Petition (Civil) No. 2047 of 1985.
From the Judgment and Order dated 29.2.1984 of the Delhi High Court in F.A.O. (O.S.) No. 28 of 1982.
Mohinder Narian, S.S. Jauhar and Ms. Zubeda Begum for the Petitioner.
The Order of the Court was delivered by CHINNAPPA REDDY, J.
It was just the other day that a Constitution Bench of this Court had to emphasise the urgency of infusing life into article 44 of the Constitution which provides that "The State shall endeavour to secure for the citizens a uniform civil code through out the territory of India.
" The present case is yet another which focuses attention on the immediate and compulsive need for a uniform civil code.
The totally unsatisfactory state of affairs consequent on the lack of a uniform civil code is exposed by the facts of the present case.
Before mentioning the facts of the case, we might as well refer to the observations of Chandrachud, C.J., in the recent case decided by the Constitution Bench (Mohd Ahmed Khan vs Shah Bano Begum & Ors.) 706 "There is no evidence of any official activity for framing a common civil code for the country .
A common Civil Code will help the case of national integration by removing disparate loyalties to laws which have conflicting ideologies.
No community is likely to bell the cat by making gratuitous concessions on this issue.
It is the State which is charged with the duty of securing a uniform civil code for the citizens of the country and, unquestionably, it has the legislative competence to do so.
A counsel in the case whispered, somewhat audibly, that legislative competence is one thing, the political courage to use that competence is quite another.
We understand the difficulties involved in bringing persons of different faiths and persuasions on a common platform.
But, a beginning has to be made if the Constitution is to have any meaning.
Inevitably, the role of the reformer has to be assumed by the courts because, it is beyond the endurance of sensitive minds to allow injustice to be suffered when it is so palpable.
But piecemeal attempts of courts to bridge the gap between personal laws cannot take the place of a common civil code.
Justice to all is a far more satisfactory way of dispensing justice from case to case.
" The facts of the case are somewhat novel and peculiar.
The wife, who is the petitioner before us claims to belong to the 'Khasi Tribe ' of Meghalaya, who was born and brought up as a Presbytarian Christian at Shilong.
She is now a member of the Indian Foreign Service.
The husband is a Sikh.
They were married under the Indian Christen Marriage Act, 1872.
The marriage was performed on October 14, 1975.
The present petition for declaration of nullity of marriage or judicial separation was filed in 1980 under sections 18, 19 and 20 of the .
The prayer for declaration no nullity of marriage was rejected by a learned single judge of the High Court, but a decree for judicial separation was granted on the ground of cruelty.
On appeal, a Division Bench of the High Court affirmed the judgment of the learned single judge.
The wife has filed this petition for special leave to appeal against the judgment of the High Court.
She seeks a declaration of nullity of marriage.
The ground on which the declaration was sought in the courts below and the ground on which it is now sought is the impotence of the husband in that though the husband is of achieving 707 erection and penetration, he ejaculates prematurely before the wife has an orgasm, leaving the wife totally unsatisfied and frustrated.
At this stage, we are not concerned with the question how far the wife has been able to establish her case.
The real problem now is that the marriage appears to have broken down irretrievably.
Yet if the findings of the High Court stand, there is no way out for the couple, they will continue to be tied to each other since neither mutual consent nor irretrievable break down of marriage is a ground for divorce, under the .
Section 10 the prescribes the grounds on which a husband or wife may petition for dissolution of marriage.
The ground on which a husband may obtain a decree for dissolution of marriage is the adultery of the wife.
The grounds on which a wife may obtain a decree for dissolution of marriage are change of religion from Christianity to another religion and marriage with another woman, incestuous adultery, bigamy with adultery, marriage with another woman with adultery, rape, sodomy or bestiality, adultery coupled with cruelty, adultery coupled with desertion for more than two years.
It must be noted that the applies only to cases where the petitioner or respondent professes the Christian religion.
Section 19 provides that a marriage may be declared null and void on the ground "(1) that the respondent was impotent at the time of the institution of the suit; (2) that the parties are within the prohibited degrees of consanguinity (whether natural or legal) or affinity; (3) that either party was a lunatic or idiot at the time of the marriage; (4) that the former husband or wife of either party was living at the time of the marriage and the marriage with such former husband or wife was then in fore.
" Section 22 provides for judicial aspersion at the instance of either husband or wife on the ground of adultery, cruelty or desertions for two years or upwards.
The provisions of the Divorce Act may now be compared with the provisions of other enactments and laws which provide for 708 decrees of nullity of marriage, divorce and judicial separation.
Under the , sec. 10 provides for judicial separation.
It enables either party to a marriage to seek judicial separation on any of the grounds specified in sec.
13(1) and in the case of a wife also on any of the grounds specified in sub sec.
2 of sec.
Section 11 provides for a declaration that a marriage is a nullity if it contravene as any one of the conditions specified in clauses (i), (iv) and (v) of sec.
(i) requires that neither party has a spouse living at the time of the marriage.
5 (iv) requires that the parties are not within the degrees of prohibited relationship, unless the custom or usage governing each of them permits of a marriage between the two.
5(v) requires that the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two.
Section 12 further provides that a marriage is voidable and may be annulled if (a) a marriage has not been consummated owing to the impotence of the respondent; or (b) a marriage is in contravention of the conditions specified in sec.
5(ii) (marriage without valid consent); or (c) the consent of the guardian, where required, under sec.
5 was obtained by force or fraud; or (d) the respondent was, at the time of the marriage was pregnant by some person other than the petitioner.
Section 13(1) enumerates the grounds for the dissolution of a marriage on the petition of a husband or wife.
It provides that a marriage may be dissolved by a decree of divorce if the other party "(i) has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse, or (i a)has, after the solemnization of the marriage, treated the petitioner with cruelty, or (i b)has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition, or (ii) has ceased to be Hindu by conversion to another religion, or (iii)has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that 709 the petitioner cannot reasonably be expected to live with the respondent.
(EXPLANATION) omitted for the present purpose) (iv) has, been suffering from a virulent end incurable form of leprosy, or (v) has been suffering from venereal disease in a communicable form, or (vi) has renounced the world by entering any religious order, or (vii)has not been heard of as being alive for a period of seven years or more by these persons who would naturally have heard of it, had that party been alive." (EXPLANATION omitted for the present purpose) Section 13 (1 A) provides "(i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of one year or upwards after passing of a decree for judicial separation in a proceeding to which they were parties, or (ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or upwards after the passing of the decree for restitution of conjugal rights in a proceeding to which they were parties.
" Section 13 (2) provides "(2) A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground 710 (i) in the case of any marriage solemnized before the commencement of this Act, that the husband had married again before such commencement or that any other wife of the husband married before such commencement was alive at the time of the solemnization of the marriage of the petitioner, or Provided that in either case the other wife is alive at the time of presentation of the petition, or (ii) that the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality, or (iii)that in a suit under section 18 of the , or in a proceeding under section 125 of the Code of Criminal Procedure, 1973 (or under the corresponding section 488 of the Code of Criminal Procedure, 1898), a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards, or (iv) that her marriage (whether consummated or not) was solemnized before she attained the age of fifteen years and she has repudiated the marriage after attaining that age but before attaining the age of eighteen years.
" Section 13 A provides that on a petition for dissolution of marriage by a decree of divorce, except in so far as the petition is founded on the grounds mentioned in sec.
13 (i) (ii) (vi) and (vii), the court may, if it considers it just so to do, having regard to the circumstances of the case, pass a decree for judicial separation.
Section 13 B further provides that a petition for dissolution of marriage by a decree of divorce may be presented to the court by both the parties to the marriage together on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage 711 should be dissolved.
If the provisions of the are compared with the provisions of the , it will be seen that apart from the total lack of uniformity of grounds on which decrees of nullity of marriage, divorce or judicial separation may be obtained under the two Acts, the contains a special provision for a joint application by the husband and wife for the grant of a decree of divorce by mutual consent whereas the contains no similar provision.
Another very important difference between the two Acts is that under the , a decree for judicial separation may be followed by a decree for the dissolution of marriage on the lapse of one year or upwards from the date of the passing of a decree for judicial if meanwhile there has been no resumption of cohabitation.
There is no corresponding provision under the and a person obtaining a decree for judicial separation will have to remain content with that decree and cannot seek to follow it up with a decree of divorce, after the lapse of any period of time.
We may also notice that irretrievable break down of marriage is yet no ground for dissolution of marriage under the also, though the principle appears to have been recognised in sec.
13 (1 A) and sec.
13(B).
We may now have a look at the provisions of the which applies only to marriages solemnized under that Act.
23 of the Act enables the husband or the wife to present a petition for judicial separation (a) on any of the grounds specified in sub section (1) and sub section (1 A) of section 27 on which a petition for divorce might have been presented; or (b) on the ground of failure to comply with a decree for restitution of conjugal rights.
Section 24 declares that a marriage may be declared nullity if (i) any of the conditions specified in clauses (a), (b), (c) and (d) of section 4 has not been fulfilled; or (ii) the respondent was impotent at the time of the marriage and at the time of the institution of the suit.
We may notice here that sec.
4 clauses (a), (b), (c), (d) and (e) provide that neither party has been subject to recurrent attacks of insanity or epilepsy, that the male has completed 21 years of age and the female 18 years of age and that the parties are not within the degrees of prohibited marriage.
Section 25 declares that a marriage shall voidable and may be annulled by a decree of nullity if, "(i) the marriage has not been consummated owing to the 712 wilful refusal of the respondent to consummate the marriage; or (ii) the respondent was at the time of the marriage pregnant by some person other than the petitioner; or (iii)the consent of either party to the marriage was obtained by coercion or fraud, as defined in the ." (The provisos have been omitted as they are not necessary for the purposes of this case) Section 27 enables either the husband or the wife to seek a decree of divorce on the ground that the respondent "(a) has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or (b) has since the solemnization of the marriage treated the petitioner with two years immediately preceding the presentation of the petition; or (c) is undergoing a sentence of imprisonment for seven years or more for an offence as defined in the Indian Penal Code; (d) has since the solemnization of the marriage treated the petitioner with cruelty; or (e) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.
(Explanation omitted as it is not necessary.) (f) has been suffering from venereal disease in a communicable form; or 713 (g) has been suffering from leprosy, the disease not having been contracted from the petitioner; or (h) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of the respondent if the respondent has been alive." (Explanation omitted as it is not necessary) Section 27 (1A) enables a wife to present a petition for divorce on the ground that her husband has since the marriage been guilty of rape, sodomy or bestiality, or that an order for maintenance has been made against the husband and that cohabitation has not been resumed for one year or upwards after the making of the order.
27 (2) further provides that a decree for divorce may be presented on the ground that there has been no resumption of cohabitation as between the parties to the marriage for a period of one year or upwards after the passing of a decree for judicial separation.
28 provides for the passing of a decree of divorce on the presentation of a petition by both the parties together on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have actually agreed that the marriage should be dissolved.
It will be seen that the like the contains provisions for a decree for judicial separation being followed up by a decree of divorce if there has been no resumption of cohabitation for a year or more and also for a decree of divorce by mutual consent.
Here again, it will be seen that the principle of irretrievable break down of marriage seems to be accepted on principle, but is not specifically made a ground of divorce.
Under the , section 30 provides that a marriage may be declared to be null and void if consummation of a marriage is from natural causes impossible.
31 provides for the dissolation of a marriage if a husband or wife has continuously been absent for a period of seven years and has not been heard of as being alive within that time.
Sec.32 provides grounds for divorce: "(a) that the marriage has not been consummated within one year after its solemnization owing to the wilful refusal of the defendant to consummate it; 714 (b) that the defendant at the time of the marriage was of unsound mind and has been habitually so up to the date of the suit; (Proviso has been omitted) (c) that the defendant was at the time of marriage pregnant by some person other than the plaintiff; (Proviso has been omitted) (d) that the defendant has since the marriage committed adultery or fornication or bigamy or rape or an unnatural offence; (Proviso has been omitted) (e) that the defendant has since the marriage voluntarily caused grievous hurt to the plaintiff or has infected the plaintiff with venereal disease, or, where the defendant is the husband, has compelled the wife to submit herself to prostitution; (The proviso has been omitted) (f) that the defendant is undergoing a sentence of imprisonment for seven years or more for an offence as defined in the Indian Penal Code; (The proviso has been omitted) (g) that the defendant the deserted the plaintiff for at least three years; (h) that a decree or order for judicial separation has been passed against the defendant, or an order has been passed against the defendant by a Magistrate awarding separate maintenance to the plaintiff, and the parties have not had marital intercourse for three years or more since such decree or order; (i) that the defendant has failed to comply with a decree for restitution of conjugal rights for a year or more; and 715 (j) that the defendant has ceased to be a Parsi." (Proviso has been omitted) Section 34 provides for judicial separation on any of the grounds on which divorce could be sought; or on the ground that the defendant has been guilty of such cruelty to him or her or to her children or has used such personal violence, or has behaved in such a way as to render it in the judgment of the court improper to compel him or her to live with the defendant.
It will be noticed here that under the also, mutual consent and irretrievable break down of marriage are not grounds of divorce though a decree for judicial separation may be followed by a decree of divorce if the parties have not had marital intercourse for three years or more since such decree or order.
Under the Mohammedan Law, a Muslim husband may divorce his wife by the pronouncement of talaq.
A Muslim wife may after the passing of the dissolution of Muslim Marriages Act, 1939, obtain a decree for a dissolution of a marriage on one of the following grounds: "(i) that the whereabouts of the husband have not been known for a period of four years; (ii) that the husband has neglected or has failed to provide for her maintenance for a period of two years; (iii)that the husband has been sentenced to imprisonment for a period of seven years or upwards; (iv) that the husband has failed to perform, without reasonable cause, his martial obligations for a period of three years; (v) that the husband was impotent at the time of the marriage and continues to be so; (vi) that the husband has been insane for a period of two years or is suffering from leprosy or a virulent venereal disease; (vii)that she, having been given in marriage by her father 716 or other guardian before she attained the age of fifteen years, repudiated the marriage before attaining the age of eighteen years (Proviso has been omitted as it is not necessary) (viii)that the husband treats her with cruelty that is to say (a) habitually assaults her or makes her life miserable by cruelty of conduct even if such conduct does not amount to physical ill treatment, or (b) associates with women of evil repute or leads an infamous life, or (c) attempts to force her to lead an immoral life, or (d) disposes of her property or prevents her exercising her legal rights over it, or (e) obstructs her in the observance of her religious profession or practice, or (f) if he has more wives than one, does not treat her equitably in accordance with the injunctions of the Qoran; (ix) on any other ground which is recognised as valid for the dissolution of marriages under Muslim Law." (The proviso has been omitted as it is not necessary in the present case).
We may add that under strict Hanafi Law, there was no provision enabling a Muslim women to obtain a decree dissolving her marriage on the failure of the husband to maintain her or on his deserting her or maltreating her and it was the absence of such a provision entailing 'inspeakable misery in innumerable Muslim women ' that was responsible for the dissolution of the Muslims Marriages Act, 1939.
(See Statements of Objects and Reasons of that Act).
If the legislature could so alter the Hanafi Law, we fail to understand the hallabalcoo about the recent judgment of this court in the case of 717 Mohd. Ahmed Khan vs Shah Bano Begum & Ors.
interpreting the provisions of sec.
125 of the Criminal Procedure Code and the Muslim Law.
it is also necessary to add that Mohammedan Law provides for a decree for divorce known as Khula and mubara ' at by agreement of parties.
It is thus seen that the law relating to judicial separation, divorce and nullity of marriage is far, far from uniform.
Surely the time has now come for a complete reform of the law of marriage and make a uniform law applicable to all people irrespective of religion or caste.
It appears to be necessary to introduce irretrievable break down of marriage and mutual consent as grounds of divorce in all cases.
The case before us is an illustration of a case where the parties are bound together by a marital tie which is better untied.
There is no point or purpose to be served by the continuance of a marriage which has so completely and signally broken down.
We suggest that the time has come for the intervention of the legislature in these matters to provide for a uniform code of marriage and divorce and to provide by law for a way out of the unhappy situations in which couples like the present have find themselves in.
We direct that a copy of this order may be forwarded to the Ministry of Law and Justice for such action as they may deem fit to take.
In the meanwhile, let notice go to the respondents.

dataset_name: IN-Abs

summary/full:
The petitioner belonged to the 'Khasi Tribe ' of Maghalaya and was born and brought up as a Presbytarian Christian.
She is now a member of the Indian Foreign Service.
The respondent husband is a Sikh.
They were married under the .
The petitioner filed a petition in 1980, for declaration of nullity of marriage or judicial separation under sections 18, 19 and 22 of the , on the ground of the impotence of her husband.
A Single Judge of the High Court rejected the prayer for declaration of nullity of marriage, but granted a decree for judicial separation on the ground of cruelty.
Division Bench affirmed the decision of the Single Judge on appeal.
In the special leave petition filed by wife, ^ HELD: (1) A comparison of the relevant provisions of the Christian Marriage Act 1872, , , , Dissolution of Muslim Marriage Act, 1939, show that the law relating to judicial separation, divorce and nullity of marriage is far, far from uniform.
[717 B] (2) Under the , a decree for the judicial separation may be followed by a decree for the dissolution of marriage on the lapse of 705 one year or upwards from date of the passing of a decree for judicial separation, if meanwhile there has been no resumption of cohabitation.
There is no corresponding provision under the and a person obtaining a decree for judicial separation will have to remain content with that decree and cannot seek to follow it up with a decree of divorce, after the lapse of any period of time.
[711 B C] (3) In the instant case, the marriage appears to have broken down irretrievably.
If the findings of the High Court stand, there is no way out for the couple.
They will continue to be tied to each other since neither mutual consent nor irretrievably break down of marriage is a ground for divorce, under the .
There is no point or purpose to be served by the continuance of a marriage which has so completely and signally broken down.
The parties are bound together by a marital tie which is better untied.
[717 B C] (4) Time has now come for the intervention of the legislature to provide for a uniform code of marriage and divorce as envisaged by Article 44 and to provide by law for a way out of the unhappy situations in which couples find themselves in.
It is necessary to introduce irretrievably break down of marriage, and mutual consent as grounds of divorce in all cases.
[717 C D]