Holding

Section 10 of the Indian Divorce Act, 1869 is not discriminatory against husbands and does not contravene Article 14.

Summary

The petitioner, Anil Kumar Mahsi, filed a writ petition under Article 32 challenging Section 10 of the Indian Divorce Act, 1869 as being discriminatory against husbands and violative of Article 14 of the Constitution. He sought dissolution of his marriage on the ground of his wife's desertion and contended that the Act allowed wives to claim divorce on several grounds not available to husbands. The Supreme Court examined the wording of Section 10, which permits a husband to seek divorce solely on the basis of his wife's adultery, whereas a wife must prove adultery coupled with other aggravating factors or other specific grounds such as conversion of religion, rape, sodomy or bestiality. The Court held that the provisions do not place the husband at a disadvantage; in fact, the wife faces a higher evidentiary burden, and the gender‑based distinctions are justified by social and physiological considerations. Consequently, the petition was dismissed for lack of merit.

Issues considered

Whether Section 10 of the Indian Divorce Act, 1869 is discriminatory against husbands and violates Article 14 of the Constitution of India.

Legislation cited

Subjects

Indian Divorce ActSection 10gender discriminationArticle 14marriage dissolutionadulteryconstitutional challengedivorce law

Judgment

ANlL KUMARMAHSI A
v.
UNION OF INDIA AND ANR.
> JULY 20, 1994

[P.B. SAWANT AND YOGESHWAR DAYAL, JJ.] B

lndia11 Divorce Act, 1869-S.lo-Dissolutio11 of Maniage-Grounds
availaNe for husband and wife-Whether discrimi11atory against husband and
violative of Art. 14 of the C<mstitution of lndia-Held: No.
c
Canstin1tian of India, 1951}-Ait. 14-Graunds available far dissolution
of Mm>iage under S.10 of the Indian Divorce Act, 1869-Held not dis-
ciiminatory against the husband.

In this Writ Petition, the petitioner's challenge is directed against
S.10 ot" the Indian Divorce Act, 1869 as being discriminatory against the D
husband and hence violative of the equality clause enshrined in Art. 14 of
the Constitution of India.

Negativing the challenge and dismissing the Petition, this Court
E
HELi> : 1. As far as the ground of adultery is concerned, it is the
husband who is in a favourable position as against the wife, since it is not
enough for the wife to prove adultery simpliciter on the part of her
husband. To that extent, undoubtedly, it is the wife who is discriminated
i against, because slle has to prove adultery which is (i) incestuous, (ii)
coupied wZti1 !:ig:-~my, (iii) coupled \l'ith marriage with another woman, (iv) F
coupled with cruelty which without adultery would have entitled her to
divorce a mensa et taro, (v) coupled with desertion without reasonable
excuse for two years or upwards. [5-A]

2.1. The other grounds which are available to the wife to claim
dissoiution of the marriage, which grounds are impliedly not available to G
the hi:siJand, are (a) that the husband has exchanged his profession of
Christianity for the profession of some other religion and gone through a
form of marriage with another woman, and (b) that thE husband is guilty
of rar·e, sodomy or bestiality. It will be evident from these two grounds that
a mere exchange of the profession of Christianity for the profession of H
1
2 SUPREME COURT REPORTS (1994] SUPP. 2 S.C.R.

A another religion on the part of the husband is not enough. The wife has
also to prove that the husband has married another woman. Since, how-
ever, the husband can seek dissolution of the marriage only on the ground
~
of adultery, the husband is not at a disadvantage as against his wife
because a mere marriage with another man whether after exchanging the
profession of religion or not, would give a ground to the husband to seek
B dissolution of marriage. [5-C-D]

· 2.2. Although the modern usage of the word 'rape' extends also to
the forcible sexual intercourse by a woman with a man, the dictionary
meaning of the said word as well as the offence of rape as defined in the
t
c Indian Penal Code speak only of forcible sexual intercourse by a man with
a woman. One has to accept the latter meaning of the said word while
construing the provisions of the Act which is one of the vintage enactments
on our statute book. Hence, it cannot be said that there is any discrimina-
ti on between husband and wife because the ground of rape is not available
to the husband for dissolving the marriage. [5-F-G]
D
State v. Young, 140 Qr. 228, 13 P. 2d 604, referred to.

Black's Law Dictionary, (5th Edn.) & Shorter Oxford English Diction-
my, referred to.

E 3. Going by S. 377 IPC, it can be said that a wom"n can also be guilty
of sodomy. So will be the position in the case of the offence of bestiality.
The discrimination therefore, can be alleged by the husband only on the
basis that these two grounds, viz., sodomy and bestiality, are not available
to him for claiming dissolution of his marriage whereas the same are
available to the wife for that purpose. Taking into consideration the
F
muscularly weaker physique of the woman, her general vulnerable physi-
que and social condition and her defensive and non-aggressive nature and
role particularly in this country, the legislature can hardly be faulted if the
said two grounds are made available to the wife and not to the husband
for seeking dissolution of the marriage. (6-D-F]
G
CIVIL ORIGINAL JURISDICTION: Writ Petition (C) No. 1285 of
'-
1989.

(Under Article 32 of the Constitution of India)

H D.K. Garg for the Petitioner.
AK. MAHSI v. U.0.1. (SAWANT,J.] 3

K.K. Venugopal and K. Vishwanathan for the Respondents. A

The Judgment of the Court was delivered by

SAWANT, J. The hearing of this petition is confined only to examin-
ing the vires of Section 10 of the Indian Divorce Act, 1869 [hereinafter B
referred to as the "Act"]. The petitioner was married to respondent No. 2,
Monika on 8th October, 1986 as per the Christian rites in a Methodist
Church at Muzaffarpur in Bihar. After marriage, the parties returned to
. Delhi on 10th October, 1986. Respondent-Monika, however, left the
matrimonial home on 26th December, 1986, i.e., two months and a fortnight
thereafter and never returned to it again. It is not in dispute [respondent- C
Monika has not filed any counter to the petition] that the parties have been
living separately since the day of the desertion by Monika on 26th Decem-
ber, 1986 as alleged in the petition. The petitioner further alleges that she
has been working as a teacher in St. Marry Girls High School, Deogarh,
~ar. D
2. In spite of notice to respondent-Monika and intimation to her that
the petitioner had deposited Rs. 3,000 for her costs in attending the Court
and the assistance of a senior advocate, Shri K.K. Venugopal is given to
her to conduct her case, she has neither filed counter, nor attended the
Court. On the other hand, by a letter of 5th January, 1993 she has intimated E
the Court that she is unable to attend the Court and that she would abide
) by the decision of the Court.

3. Since the vires of Section 10 was under challenge, notice was issued
to the Attorney General. The Attorney Genera~ however, did not choose F
to put in his appearance. We were, however, ably assisted by Shri
Venugopal, learned senior advocate appointed to represent respondent-
Monika. After the matter was heard, oral directions were given to the
parties to submit their written submissions. The petitioner was to file his
written submissions first and the respondents were to file the written
-· submissions within two weeks thereafter. In spite of our listing the matter G
on 19th January, 1994 again for reminding the parties to file their written
submissions, the petitioner has not done so and consequently the respon-
dents have not filed their written submissions. We are, therefore, proceed-
ing to deliver this judgment on the basis of the oral submissions and in the
absence of the assistance of the Attorney General. H
4 SUPREME COURT REPORTS (1994] SUPP. 2 S.C.R.

A 4. The Petitioner had initially challenged vires of Section 10 of the
Act as being arbitrary, discriminatory and violative of Articles 14, 19, 21
and 44. However, the challenge on the ground of violation of Articles 19,
21 and 44 has not been pressed. We may mention here that Article 44 was
invoked since the other prayer of the petitioner was to direct the first
respondent-Union of India to enact a common civil code. That relief is no
B longer pressed and, as stated earlier, the petition is confined to the chal-
lenge to Section 10 of the Act on the ground of the violation of Article 14
of the Constitution. The relevant portion of Section 10 reads as follows :

"10. When husband may petition for dissolution. - Any husband .
c may present a petition to the District Court or to the High Court,
praying that his marriage may be dissolved on the ground that his
wife has, since the solemnization thereof, been guilty of adultery.

When wife may petition for dissolution.

D Any wife may present a petition to the District Court or to the
High Court, praying that her marriage may be dissolved on 'the '·
ground that since the solemnization thereof, her hasband has
exchanged his profession of Christianity for the profession of some
other religion, and gone through a form of marriage with another
woman;
E
or, has been guilty of incestuous adultery,

or of bigamy with adultery,

or of marriage with another woman with adultery,
F
or of rape, sodomy or bestiality,

or of adultery coupled with such cruelty as without adultery
would have entitled her to a divorce a n1ensa et tora,
G
or of adultery coupled with desertion, without reasonable ·-
excuse for two years or upwards."

It will be apparent from the aforesaid provisions that while the
husband can seek dissolution of marriage on the ground that his wife has
H been guilty of adultery simpliciter, the wife has to prove that the husband
AK. MAHSI v. U.0.1. [SAWANT,J.J. 5

has been guilty of adultery which is (i) incestuous, (ii) coupled.with bigamy, A
(iii) coupled with marriage with another woman, (iv) coupled with cruelty
which without adultery would have entitled her to divorce a mensa et tora,
(v) coupled with desertion without reasonable excuse for two years or
upwards. It is, therefore, clear that as far as the ground of adultery is
concerned, it is the husband who is in a favourable position as against the
B
wife, since it is not enough for the wife of prove adultery simpliciter on the
part of her .husband. To that extent, undoubtedly, it is the wife who is
discriminated against. As regards the other grounds which are available to
the wife to claim dissolution of the marriage, which grounds are impliedly
not available to the husband, the same are as follows: (a) that the husband
has exchanged his. profession of Christianity for the profession of some c
other religion and gone through a form of marriage with another woman,
and (b) that the husband is guilty of rape, sodomy or bestiality. It will be
evident from these two grounds that a mere exchange of the profession of
Christianity for the profession of another religion on the part of the
husband is not enough. The wife has also to prove that the husband has D
' married another woman. Since, however, the husband can seek dissolution
of the marriage only on the ground of adultery, the husband is not at a
disadvantage as against his wife because a mere marriage with another man
. '
whether after exchanging, the profession of religion or not, would give a
ground to the husband to seek dissolution of marriage. It would thus be
seen that even as.far as this ground is concerned, it is the wife who is at a E
disadvantage.
,
As regards the only other ground unavailable to the husband, they
are of rape, sodomy or bestiality. Although the modern usage of the word
'rape' extends also to the forcible sexual intercourse by a woman with a F
man, the dictionary meaning of the said word as well as the offence of rape
as defined in the Indian Penal Code speak only of forcible sexual inter-
course by a man with a woman. We have, therefore, to accept the latter
meaning of the said word while construing the provisions of the Act which
is one of the vintage enactments on our statute book. Hence, it cannot be
said that there is any discrimination between husband and wife because the G
ground of rape is not available to the husband for dissolving the marriage.

As regards sodomy, the word is defined in Black's Law Dictionary
(5th Edn.) to mean "a carnal copulation by human beings with each other
against nature, or with a beast. State v. Young, 140 Or. 228, _13 P. 2d 604, H
6 SUPREME COURT REPORTS (1994] SUPP. 2 S.C.R.

A 607. Sodomy is oral or anal copulation between persons who are not
husband and wife or between consenting adult members of the opposite
sex, or between a person and an animal, or coitus with an animal. Kansas .
Criminal Code". Shorter Oxford English Dictionary defines the word
'sodomy' to mean "... An unnatural form of sexual intercourse, esp. that of
B one male with another". Section 377, !PC defines "unnatural offences" as
follows :

"377. Unnatural Offences. • Whoever voluntarily has carnal inter·
course against the order of nature with any man, woman or animal,
shall be punished with imprisonment for life, or with imprisonment
c of either description for a term which may extent to ten years, and
shall also be liable to fine.

Explanation. · Penetration is sufficient to constitute the carnal
intercourse necessary to the offence described in this section."

D It can, therefore, be said that a woman can also be guilty of sodomy.
So will be the position in the case of the offence of bestiality. The dis-
crimination, therefore, can be alleged by the husband only on the basis that
these two grounds, viz., sodomy and bestiality, are not available to him fo!
claiming dissolution of his marriage whereas the same are available to the
wife for the purpose. ,
E
5. Taking into consideration the muscularly weaker physique of the
woman, her general vulnerable physical and social condition and her
defensive and non-aggressive nature and role particularly in this country,
the legislature can hardly be faulted if the said two grounds are made
F available to the wife and not to the husband for seeking dissolution of the
marriage. For the same reasons, it can hardly be said that on that account
the provisions of Section 10 of the Act are discriminatory as against the
husband.

We, therefore, find that there is no substance in the challenge by the
G
petitioner-husband to the vires of the provisions of Section 10 as being
discriminatory against the husband and, therefore, violative of Article 14
of the Constitution.

6. What is further, the individuals not willi.ng to submit to the Indian
H Divorce Act or any other personal law are not obliged to marry exclusively
A.K. MAHSI v. U.0.1. [SAWANT, J.] 7

under that law. Thay have the freedom to marry under the special Marriage A
• 1 Act, 1954. Having, however, married under the Act and accepted its
discipline, they cannot be heard to complain of its rigours, if any.

7. In this view of the matter, we find no merit in the petition and it
is dismissed. In the circumstances of the case, there will be no costs.
B
G.N. Petition dismissed .

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