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1995 DIGILAW 231 (DEL)

STEPHEN JOSHUS v. J. D. KAPOOR

1995-03-09

DEVENDER GUPTA

body1995
Devinder Gupta, J. ( 1 ) THE petitioners are Indian Christians and were married to each other on 25th August, 1973 under the provisions of the Indian Christian Marriage Act, 1872. A joint petition was preferred by them under Section 28 of the Special Marriage Act, 1954 (hereinafter referred to as the Act ) seeking the dissolution of marriage by a decree of divorce by mutual consent. Petition was dismissed on 5. 10. 1991 by Shri J. D. Kapur, Additional District Judge, Delhi. One of the grounds for dismissal was that the marriage was solemnised under the Christian Marriage Act whereas divorce had been sought under the Special Marriage Act, therefore, the petition was not maintainable. Petitioners have questioned the decision in this petition filed under Article 227 of the Constitution of India and under Section 39 of the Act. ( 2 ) I have heard the learned counsel for the petitioners. ( 3 ) THE contention of the learned counsel for the petitioners has been that Special Marriage Act, 1954 is a piece of legislation, which applies equally to all citizens of India, therefore, irrespective of the fact that the marriage was solemnised under some other provisions of law, section 28 thereof does not create any bar for obtaining a decree of divorce by mutual consent. It is contended that on harmonious construction of all the statutes dealing with the personal religious law of marriage and divorce, in the light of the provisions of the Special Marriage Act, there cannot be any bar for the persons, to whom the provisions of the Special Marriage Act, 1954 apply, to take recourse under the provisions of the Act for seeking divorce by mutual consent. Reliance was placed by the learned counsel for the petitioners on a decision of a single Judge of the High Court of Rajasthan in Chistopher Andrew Neelakantan v. Mrs. Anne Neelakantan ( AIR 1959 Raj 133 ). ( 4 ) THOUGH the argument is attractive one but on a plain reading of Section 28 of the Act and on a true construction placed thereon, it is not possible to accept the same. The Act was enacted by the Parliament in 1954 with a view to provide a special forum of marriage in certain cases, for the registration of marraiges and for divorce. It was made applicable to all citizens of India domiciled in the country. The Act was enacted by the Parliament in 1954 with a view to provide a special forum of marriage in certain cases, for the registration of marraiges and for divorce. It was made applicable to all citizens of India domiciled in the country. It is possible for every citizen of India domiciled in India by virtue of provisions of the Act to have his or her marriage solemnised with another citizen of India domiciled in India belonging to any other community. The rights, obligations and status of the parties to such a marriage, in the matters relating to restitution of conugal rights, judicial separation, nullity of marriage and divorce are regulated by the provisions contained in the Act. In the instant case, the question is whether divorce by mutual consent can be obtained by having resort to Section 28 of the Act when marriage has neither been solemnised nor registered under the provisions of the Act but has been solemnised under the provisions of the Christian Marriage Act. Section 28 of the Act reads: "28. Divorce by mutual consent.- (1) Subject to the provisions of this Act and to the rules made thereunder, a petition for divorce may be presented to the District Court by both the parties together on the ground that they have been living separately for a period ofone year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved. (2) On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the District Court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized under this Act and that the averments in the petition are true, pass a decree declaring the marriage to be dissolved with effect from the date of the decree. " ( 5 ) ANSWER to the question posed can be found on a plain reading of sub section 2 of Section 28 which confers jurisdiction upon the District Court to grant a decree, declaring the marriage to be dissolved, only on his satisfaction that the marriage has been solemnised under this Act. Accepting the contention of the learned counsel for the petitioner will make a part of sub section (2) of Section 28 nugatory. It would also amount to doing away with one of the mandatory conditions for grant of a decree of divorce on mutual consent. The jurisdiction conferred upon the District Court to grant divorce is on his being satisfied that the marriage has been solemnised under the Act. ( 6 ) DECISION in Chistopher Andrew Neelakantan s case (supra), with due respect, overlooks the mandatory requirements contained in sub section (2) of Section 28 that divorce under Section 28 can be granted only on satisfaction of the District Judge that the marriage was solemnised under the Act. ( 7 ) DECISION of the Supreme Court in Renold Rajamani and another v. Union of India and another ( AIR 1982 SC 1261 ) squarely applies to the facts of the instant case which says that grounds of mutual consent for a decree of divorce is available under Section 28 of the Special Marriage Act, 1954 and Section 13 B of Hindu Marriage Act. The Courts cannot read that ground under Section 10 of the Divorce Act (Act No. 4 of 1869) by adopting a policy of "social engineering". It was held that whether a provision for divorce by mutual consent should be included in Indian Divorce Act is a matter legislative policy. The courts cannot extend or enlarge the legislative policy by adding a provision to the statute which was never enacted there. ( 8 ) IT is not disputed that there is no such provision like Section 28 of Special Marriage Act and Section 13-B of Hindu Marriage Act, under the Indian Divorce Act for obtaining a decree of divorce on mutual consent. Acceptance of the submissions made on behalf of the petitioners would amount to obliterating Section 28 of the Act. Even if Section 28 of the Act is given a liberal interpretation, the mandatory requirement cannot be done away that the marraige must have been solemnised under the Act. Acceptance of the submissions made on behalf of the petitioners would amount to obliterating Section 28 of the Act. Even if Section 28 of the Act is given a liberal interpretation, the mandatory requirement cannot be done away that the marraige must have been solemnised under the Act. ( 9 ) THUS, there is no infirmity in the impugned order. ( 10 ) THE petition in view of the ratio of decision in Renold Rajamani and another v. Union of India and another (supra) has no force and deserves dismissal, which is hereby dismissed.