A.R Lakshmanan, J.:— These two Original Petitions raise the same question with regard to the validity of Section 17 of the Indian Divorce Act, 1986 (hereinafter referred to as ‘the Act’) which says that a decree for dissolution of marriage passed by a District Judge has to be confirmed by a three-Judge Bench of the High Court. According to the petitioners, this confirmation is required only for Christians and so it is discriminatory, arbitrary and violative of Articles 13(1), 14, 15(1) and 21 of the Constitution of India. It is further submitted that since this section is to consistent with Part III of the Constitution, it violates Article 13(1) which says that all pre-Constitutional laws have to be consistent with Part III of the Constitution. The other grounds of attack are as under:
(a) The section is applicable only to Christians and, therefore, it amounts to a discrimination based on religion and so is violative of Article 15(1) of the Constitution of India;
(b) The Section is also violative of Article 21 of the Constitution because even if the husband and wife are not interested in further approaching any Court after the decree by the District Judge, they have to wait minimum for another six months for confirmation, which further delays their right to have a new married life; and
(c) It also leads to additional expenses and agony to the parties since the Section in question interferes and adversely affects the fundamental rights of the parties guaranteed under Article 21 of the Constitution to have a decent living.
2. It is further submitted that a decree for dissolution of marriage among Hindus, Budhists, Sikhs and Jains under the Hindu Marriage Act, 1955, among the Parsis under the Parsi Marriage and Divorce Act, 1936 and among the Muslims under the Dissolution of Muslim Marriages Act, 1939 are made by the District Courts and under the last mentioned Act even by Courts of lower rank and all such decrees operate with the fullest efficacy without any confirmation from the High Court. Section 17 of the Act only result in protracting and prolonging the litigation even where none of the parties is interested to have a further review or reconsideration of their case by any higher Court.
3. The Union of India filed a counter affidavit. According to them:
(a) Article 44 of the Constitution itself recognises separate and distinctive Personal Laws;
(b) What is contained in Section 17 of the Act is a special procedure in dealing with decree for dissolution of marriages among Christians and it cannot be said that the Legislature was discriminating against the Christians only on me ground of religion;
(c) It is clearly for the Legislature to lay down its policies, The State Of Bombay v. Narasu Appa Mali…Accused., AIR 1952 Bombay 84: (1952 Cri LJ 354).
(d) Section 17 of the Act embodies a procedure in accordance with the Legislative policy and the said provision of Law has withstood the test of time and judicial scrutiny. According to them, Section 17 of the Act does not create an unreasonable differentiation, T.M Bashiam v. M. Victor, AIR 1970 Madras 12. Further, if a particular petitioner requires a trial on original side of the High Court in a suitable case, he can approach the High Court by invoking the provisions of Section 8 of the Act;
(e) The subject-matter of the Act falls under Entry 5 of the Concurrent List in the Seventh Schedule to the Constitution and every State Legislature, subject to the provisions of Article 254 of the Constitution, is competent to carry out amendments to the Act if the local situation obtaining in the particular State necessitates such amendment and that the Government of Kerala can also bring in amendments on the lines of the Uttar Pradesh Amendment if the State Government considers it necessary or expedient. It is pertinent to notice that the State of Uttar Pradesh has done away with Section 17 of the Act by a State Amendment Act being Act 30 of 1957;
(f) Section 17 of the Act embodies the procedure required to be followed. It contains the Legislative policy and the same is legal and valid; and
(g) The Legislature is to lay down the policy which the State should pursue and making law or amendments is a function to be performed by the Legislature. The remedy does not lie with the Courts, Ahmedabad Women Action Group v. Union of India, (1997) 3 JT (SC) 171: (AIR 1997 SC 3614).
4. We have heard arguments of Mr. Tony George Kannanthanam for the petitioners and Mr. K. Ramakumar, Senior Central Government Standing Counsel for the Union of India. Counsel appearing on either side reiterated their submissions on the basis of the pleadings raised in the Original Petitions and in the counter affidavit.
5. Mr. Kannanthanam submitted that Section 17 of the Act contravenes the rights guaranteed under Articles 13, 14, 15 and 21 of the Constitution of India. For the sake of convenience, the following Sections are extracted below:
“S. 17 of the Act
Confirmation of decree for dissolution by District Judge:—Every decree for a dissolution of marriage made by a District Judge shall be subject to confirmation by the High Court.”
“Art. 13(1) of the Constitution
All laws in force in the territory of India immediately before the commencement of this Constitution, insofar as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void.”
“Art. 14 of the Constitution
The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”
“Art. 15(1) of the Constitution
The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.”
“Art. 1 of the Constitution
No person shall be deprived of his life or personal liberty except according to procedure established by law.”
In support of his contention, learned counsel for the petitioners submitted that a Special Bench of the Madhya Pradesh High Court, while disposing of a confirmation proceedings under Section 17 of the Act, has made recommendations to make suitable amendments in the Act as made in Uttar Pradesh by Act 30 of 1957. It also observed that Section 17 of the Act prolongs the agony of the affected parties even though none of them are desirous of preferring an appeal. Christian spouses have been denied procedural reasonableness and due process by Section 17 of the Act providing compulsory confirmation hearing whereas the spouses belonging to other religious denominations are not subjected to any such further hearing. Therefore, learned counsel submitted that Section 17 of the Act is anachronistic. Our attention was drawn to, B.C & Co. v. Union of India, AIR 1973 SC 106, wherein it was held that the laws must be taken to be well settled that however laudable or otherwise justifiable the object or purpose for the differentiation may be, it is not the object or the purpose or the form, but it is the effect, the impact, the result of the law that would determine the question of infringement of fundamental rights. Swapna Ghosh v. Sadananda Ghosh, AIR 1989 Calcutta 1, was also relied on by learned counsel for the petitioners. It was held that Section 17 of the Act appears to be a mid-Victorian Vintage and still valid in India…… It is difficult to appreciate the retention of Section 17 of the Act providing that the Christian couples even after obtaining a decree for dissolution from the District Court, may be after a long drawn and strenuous litigation, must still wait for confirmation thereof from the High Court before those decrees can be complete and binding. Learned counsel would submit that Section 17 of the Act is violative of Article 15(1) of the Constitution because there can be no discrimination on the basis of religion. It is the case of the petitioners that no decree can be confirmed under Section 17 of the Act till after the expiration of such time, not less than six months, from the pronouncing thereof as the High Court by general or special order from time to time direct, and that the High Court will not confirm a decree for dissolution if it is not satisfied that the respondent was in fact served with a petition for divorce. According to the petitioners, Section 17 of the Act does against the Preamble of the Constitution which proclaims India to be a secular State which means that each and every religion is to be treated equally and no preference is to be given to any particular religion. Citing Peerless General Finance and Investment Co. Limited v. Reserve Bank, (1992) 2 SCC 343 : (AIR 1992 SC 1033) (paragraphs 48 to 51), learned counsel for the petitioners submitted that the Court must consider not merely the purpose of the law but also the means how it is ought to be secured or how it is to be administered and that every endeavour should be made to have the efficacy of fundamental rights maintained and the Legislature is not invested with unbounded power. Arguing on the efficacy of fundamental rights, learned counsel submitted that wherever a statute is challenged as violative of the fundamental rights, its real effect or operation on the fundamental rights is of primary importance and that the Legislature cannot disobey the constitutional mandate by employing an indirect method and if it directly transgresses or substantially and inevitably affects the fundamental right, it becomes unconstitutional. Relying on, Delhi Transport Corporation v. D.T.C Mazdoor Congress, 1991 Supp (1) SCC 600 : (AIR 1991 SC 101, learned counsel submitted that any law which is inconsistent with the fundamental rights guaranteed by operation of Article 13 is void. Charan Lal Sahu v. Union Of India., AIR 1990 SC 1480, is also cited for the proposition that Article 14 condemns discrimination not only by a substantive law but also by a law of procedure.
6. Learned counsel for the petitioners has also brought to our notice some of the recent decisions of this Court. Learned counsel first cited, Mary Sonia Zachariah v. Union Of India, 1995 (1) Ker LT 644 (FB). In that case, the Constitutional validity of Section 10 of the Indian Divorce Act, which regulated divorce among Christians in India, was directly under challenge at the instance of two Christian women on the ground that the provisions in Section 10 are violative of the fundamental rights guaranteed to them and other similarly situated Christian women under Articles 14, 15 and 2 of the Constitution. It was contended that Section 10 of the Act insofar as it makes ‘adultery’ also necessary to be established along with ‘cruelty’ and ‘desertion’ as a ground for divorce is arbitrary, authoritarian and violative of the fundamental rights under Articles 14, 15, 19 and 21 of the Constitution. It was further contended that Section 10 of the Act insofar as it incorporates the word ‘incestuous’ before the word ‘adultery’ thereby making an aggravated form of adultery alone as a ground for divorce for Christian women whereas all other Indians including Christian men are entitled to get divorce on the ground of adultery simpliciter is violative of Articles 14, 15 and 21 of the Constitution. The Union of India filed a counter affidavit and opposed the reliefs prayed for in those Original Petitions. The Full Bench held that the offending portions of the provisions are severable and they are liable to be quashed as ultra vires. It was further held that the remaining portions of the provisions can remain as valid provisions allowing dissolution of marriage on grounds of adultery simpliciter and desertion and/or cruelty independent of adultery. The Bench has opined that adoption of such a course would help to avoid striking down of the entire provisions in Section 10 of the Act and to grant necessary reliefs to the petitioners therein and similarly situated Christian wives seeking dissolution of their marriage which has for all intents and purposes ceased to exist in reality. The Full Bench accordingly quashed the words ‘incestuous’ and ‘adultery coupled with’ from the provisions of Section 10 of the Act and declared that Section 10 will remain hereafter operative without the above words. Before parting with the case, the Full Bench also observed that in spite of a positive direction issued by K.T Thomas, J. (as His Lordship then was) to the Central Government to take a final decision on the recommendation of the Law Commission in its 90th report for making amendments to Section 10 of the Act, no final decision has been taken in the matter. The Full Bench finally observed that what they have done was only a limited attempt at reform of the law and there is real need to have a comprehensive reform. The Full Bench also hoped that the judgment will have a compelling effect on the Central Government in finalising its proposal for introducing comprehensive reform in the law governing marriages and divorce among Christians in India.
7. Yet, another recent decision of this Court reported in, Binoy Mathew (1998 (2) Ker LJ 688 (FB), was also cited. That was a reference under Section 17 of the Act. The wife claimed divorce under Section 10 of the Act on the ground of cruelty. It was contended by her that she was being physically assaulted by her husband and she was not even given proper food and clothing. The husband remained ex parte even though notice was received by him. Before the Full Bench, Mary Sonia Zachariah v. Union Of India (1995 (1) Ker LT 644 FB), Mrs. Neena v. John Promer, AIR 1985 MP 85, Swapan Ghosh v. Sadanand Ghosh, AIR 1989 Cal 1, Solemn Devasahayam Selvaraj v. Chandrika Mary (1968) (1) Mad LJ 289) and Pragati Varghese v. Cyril George Varghese, AIR 1997 Bom 349 (FB) were cited. A passage in Pragati Varghese's case (AIR 1997 Bom 349 (FB) (supra) was relied on by learned counsel for the petitioners before us as well which reads thus at page 373:
“Section 17 we further find, provides that in case of a High Court comprises of only two Judges and decree passed by a District Court comes up for confirmation before the said two Judges and in case of a difference of opinion, the provision contemplates that the decision of the Senior Judge would prevail. In our judgment, the aforesaid procedure contemplated by Secs. 16, 17 and 20 are unreasonable and are arbitrary in nature. The same achieves no useful object or purpose. The procedure provided tends to perpetuate the agonies of the affected parties for no useful purpose. If such a procedure is absent in other similar enactments, we do not find any propriety why this procedure should be applied to Christian spouses. The said procedure, in the circumstances, is liable to be struck down by suitable amendments, which we suggest should be brought about by suitable amendments in the Act.
….We further find the provisions of Secs. 16, 17 and 20 of the Act are also, arbitrary and unreasonable. We suggest that the legislature should intervene and carry out suitable amendments to ‘the Act’ at the earliest. We direct that a copy of this order may be forwarded forthwith to the Ministry of Law and Justice for such action as they may deem fit to take.”
The Full Bench, after considering all the above judgments including the Full Bench of the Bombay High Court in Pragati Varghese's case (AIR 1997 Bom 349 (FB) (supra), held as follows:
“We feel that it is high time that the provision regarding confirmation under Secs. 17 and 20 of the Indian Divorce Act, 1869 are deleted from the Statute. Section 17 provides that every decree for dissolution of marriage made by a District Judge shall be subject to confirmation by the High Court. It is further provided that cases for confirmation of a decree for dissolution of marriage shall be heard by a Court composed of three such Judges. Section O provides that every decree of nullity of marriage made by a District Judge shall be subject to confirmation by the High Court. A petition, under Sec. 10 for grant of divorce and Sec. 18 for declaring the marriage null and void can be filed both before the District Court as well as the High Court. When such petitions are filed in the High Court, it is being heard by a single Judge and appeal therefrom by a Bench consisting of two Judges. Above being the provision, we are of the view that confirmation of a judgment of the District Court by a Bench of three Judges is absolutely unwarranted. We are also of the view that the provision for confirmation can be deleted and in its place a provision could be made for filing an appeal before the High Court by whichever party aggrieved by the order passed either under Section 10 or under Section 18. Such an appeal can be heard by a Bench consisting of two Judges as in the case of all other matrimonial appeals. As early as in 1987 an amendment was brought in Uttar Pradesh to the Indian Divorce Act, 1869. Under the Indian Divorce Act (U.P Amendment Act, 1957) paragraphs 1 to 5 of Section 17 of the Indian Divorce Act, which contain provisions regarding confirmation of the decree for dissolution of marriage by the High Court are deleted by the above Amendment. So also, Section 20 incorporating paragraphs 1 to 4 of Section 17 was also deleted by the 1957 Amendment. But, unfortunately, during the last 40 years no steps is seen taken to amend the Act by the Parliament by deleting these provisions. Three other High Courts including a recent decision of the Bombay High Court have pointed out the reasonableness of this provision. The present case is an example of how parties are unnecessarily put to trouble by these provisions for confirmation. Both sides have no complaint about the order passed by the Court below. In almost all the cases, which come up for confirmation both sides agreed for an order of confirmation. Their only complaint would be that they are compelled to wait for long periods till a Bench of three Judges is constituted in order to enjoy the benefit of the decree. We are of the view that to compel the Christian spouses alone to follow this procedure is clearly unfair and arbitrary. If a provision of appeal is provided, only those who are really aggrieved by the order passed by the trial Court need come to this Court by filing appeal. We direct the registry to forward a copy of this judgment to the Ministry of Law and Justice, Union of India, the Law Secretary, State of Kerala and also the Chairman, Law Commission of India.”
Before the Full Bench, the judgment of the Supreme Court reported in, Ahmedabad Women Action Group v. Union of India, 1997 (3) JT (SC) 171: (AIR 1997 SC 3614), was not cited.
8. Preman v. Union of India, 1998 (2) Ker LT 1004, was also relied on by learned counsel for the petitioners. The said decision was rendered by this Bench. The decisions reported in, State of Bombay v. Narasu Appa, AIR 195 Bom 84: (1952 Cri LJ 354), T.M Bashiam v. M. Victor, AIR 1970 Mad 12 and Ahmedabad Women Action Group v. Union of India, 1997 (3) JT (SC) 171: (AIR 1975 SC 3614), were not cited before us at that time. The said case was decided on the basis of the arguments advanced by the respective counsel and the decisions cited then.
9. Mr. K. Ramakumar, learned Senior Central Government Standing Counsel submitted that personal laws are not laws as defined under Article 13 of the Constitution. In support of his contention, he cited, State of Bombay v. Narasu Appa, AIR 1952 Bom 84: (1952 Cri LJ 354) and invited our attention to the views expressed by Chagla, C.J and Gajendragadkar, J. Before the Bombay High Court, the validity of the Bombay Prevention of Hindu Bigamous Marriages Act, 1946 was questioned. The Act was challenged as contravening the fundamental rights guaranteed under Articles 14, 15 and 25 of the Constitution. The Division Bench in the above case observed that if the State of Bombay compels Hindus to become monogamists, it is a measure of social reform and if it is a measure of social reform then the State is empowered to legislate with regard to social reform under Article 25(2)(b) notwithstanding the fact that it may interfere with the right of a citizen freely to profess, practise and propagate religion. The question raised before the Bench was as to whether it is for the Legislature to decide what constitutes a social reform. The Bench has observed as follows:
“It must not be forgotten that in a democracy the Legislature is constituted by the chosen representatives of the people. They are responsible for the welfare of the State and it is for them to lay down the policy that the State should pursue. Therefore, it is for them to determine what legislation to put upon the statute book in order to advance the welfare of the State. If the Legislature in its wisdom has come to the conclusion that monogamy tends to the welfare of the State, then it is not for the Courts of Law to sit in judgment upon that decision. Therefore, in our opinion, this legislation does not contravene Art. 25(1) of the Constitution.”
Coming to Articles 14 and 15(1) of the Constitution, the Bench has emphasized that both the Articles stress the equality before law. Article 14 confers the right upon every person whereas the right given under Article 15(1) is confined to the citizens of India. If there is any discrimination in law, then the law, would not have an equal application to all persons, unless the discrimination can be justified on some reasonable basis or the distinction made has some reasonable relation to the subject of the legislation. Article 15(1) further emphasises the fact that any discrimination which is based only on the ground of religion, race, caste, sex or place of birth can never be a reasonable discrimination. Referring to Article 44, the Division Bench observed that the said Article recognises separate and distinctive personal laws because it lays down as a directive to be achieved that within a measurable time India should enjoy the privilege of a common uniform Civil Code applicable to all the citizens irrespective of race or religion. It was argued before the Bench that by reason of the Constitution, the Muslim personal law which permits polygamy has become void and, therefore, the Act has discriminated in applying to Hindus. The Bench, considering the said argument, held that Article 13(1) provides that all laws in force in the territory of India immediately before the commencement of the Constitution, insofar as they are inconsistent with the provisions of Part III, shall, to the extent of such inconsistency, be void and what is contended is that the institution of polygamy offends under Article 15(1) inasmuch as a Muslim male is permitted to have more than one wife whereas a Muslim woman is restricted to one husband. It was, therefore, submitted that the very-institution of polygamy discriminates against women only on the ground of sex. The Bench considered the question whether in the expression “all laws in force” appearing in Article 13(1), personal laws are included or not. Considering Article 13(3)(b), the Bench has observed that it is an inclusive and not an exhaustive definition of ‘laws in force.’ Even though it may appear that ‘all laws in force’ would include personal laws because they were laws which were in force in the territory of India, the Bench rejected the said argument and held that:
“the State shall not make any, law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.”
The Bench further observed that ‘law’ as defined in the Article includes any Ordinance, Order, Bye-law, Rule, Regulation, Notification, Custom or Usage having in the territory of India. The Bench, after careful consideration of the contentions and various provisions of the Constitution, came to the conclusion that personal laws are not included in the expression ‘laws in force’ used in Article 13(1). Considering Article 15(1) of the Constitution, the Bench also observed that the institution of polygamy would not constitute a discrimination against members of one sex only on the ground of their sex. Under these circumstances, the Bench was of the opinion that the Hindu Bigamous Marriages Act, 1946 was a valid Act. Gajendragadkar, J., while agreeing with Chagla, C.J had added that even if it is held that personal laws fall within Article 13(1) he was not satisfied that the provisions of these personal laws permitting polygamy, amount to a discrimination against women only on the ground of sex. The learned Judge held that it is impossible to say that the impugned Act discriminates against the Hindus in preference to the Mohammedans and, therefore, the material provisions of the laws permitting polygamy do not offend against Article 15(1) and are, therefore, not void.
10. Mr. Ramakumar then cited a Special Bench decision of the Madras High Court in, T.M Bashiam v. M. Victor, AIR 1970 Mad 12). The above case was a reference by a District Judge under Section 10 and 17 of the Act for making absolute the decree nisi granted by him dissolving the marriage between the parties therein. It was argued before the Bench that four years have elapsed since the decree for judicial separation and there has been no resumption of matrimonial living between the parties. In brief, the wife desired that she should be granted a decree nisi for dissolution of the marriage. The Bench, after referring to, G.S Joseph v. Miss H.S Edward, AIR 1955 Mad 341 (FB), came to the conclusion that there is no discrimination whatever in Section 17 of the Act. The Bench finally observed that even if such an argument has to be accepted for the sake of hypothesis, it would still involve an adverse result to the petitioner because the reference itself will have to be quashed as well as the decree nisi of the learned District Judge. In that case, learned counsel for the wife has raised an argument that Section 17 itself may be taken as violating Article 14 of the Constitution because it provides for the reference to the High Court to be heard by a Bench of three Judges for confirmation of a decree nisi for dissolution of marriage granted by the District Court, whereas with regard to such cases arising under the Original civil jurisdiction of the High Court, the High Court itself exercises that jurisdiction and the proceeding is a petition before a learned single Judge. According to the Special Bench, it is not an unreasonable differentiation; nor one unrelated to a very clear principle, of distinction that the jurisdiction of a superior Tribunal attracts cases arising within its territory, while inferior tribunals have to deal with cases in their similar jurisdictions. If such a principle or scheme were to be held as offending Article 14 the entire hierarchy of Courts and the different provisions for the institution and disposal of civil matters in these Courts will have to be abolished. The Bench also held that Section 7 does not incorporate the statutes of some other country as part of the law of this land; it merely makes a provision for conforming to the practice and principles of the matrimonial Courts in England in the matter of Divorce or Dissolution of marriage subject to the provisions and the scheme of the Act.
11. The other decision cited by Mr. K. Ramakumar is by the Supreme Court in, Ahmedabad Women Action Group v. Union of India, 1997 (3) JT (SC) 171: (AIR 1997 SC 3614), which was not cited before any of the Benches which rendered decisions on identical matters recently. A Public Interest Litigation was filed in the form of a writ petition before the Supreme Court to declare Muslim Personal Law which allows polygamy as void as offending Articles 14 and 15 of the Constitution of India and also to declare the Muslim Personal Law which enables a Muslim male to give unilateral Talaq to his wife without her consent and without resort to judicial process of Courts as void, offending Articles 13, 14 and 15 of the Constitution and for other allied reliefs. The Supreme Court observed that the issues raised before it wholly involve issues of State policies with which the Court will not ordinarily have any concern. Their Lordships held that the remedy lies somewhere else and not by knocking at the doors of the Courts. The Supreme Court has also referred to, Maharshi Avadheshpetitioner/ v. Union Of India., 1994 (Supp) 1 SCC 713, Reynold Rajamani v. Union of India, (1982) 2 SCC 474 : (AIR 1982 SC 1261), Pannalal Bansilal v. State of A.P, 1996 (1) JT (SC) 516: (AIR 1996 SC 1023), Krishna Singh v. Mathura Ahir, AIR 1980 SC 707: (1980 All LJ 299), Saria Mudgal v. Union of India (1995) 3 SCC 635): (AIR 1995 SC 1531), Madhu Kishwar v. State of Bihar, 1996 (4) JT (SC) 379: (AIR 1996 SC 1864) and Anil Kumar Mansi v. Union of India, 1994 (4) JT (SC) 409. The Supreme Court declined to entertain the writ petition and accordingly dismissed the same. Their Lordships also referred to the decision in, The State Of Bombay v. Narasu Appa Mali…Accused., AIR 1952 Bom 84: (1952 Cri LJ 354). The decision in, Pannalal Bansilal's case (AIR 1996 SC 1023) (supra) held that a uniform law, though is highly desirable, enactment thereof in one go perhaps may be counter-productive to unity and integrity of the nation and that making law or amendment to a law is a slow process and the legislature attempts to remedy where the need is felt most acute. The mischief of defect which is most acute can be remedied by process of law at stages. The decision in State of Bombay's case (AIR 1952 Bom 84) (supra) was also widely quoted and important passages were also extracted in the above judgment by the Supreme Court.
12. In view of the Supreme Court decision, we are of the opinion that personal laws do not fall, within Article 13(1) of the Constitution and that they are not laws as defined in Article 13(1). As already noticed, the Full Bench of the Madras High Court has upheld the validity of Section 17 of the Act which was challenged before it. As held by the Supreme Court in Ahmedabad Women Action Group case: (AIR 1997 SC 3614) (supra), this Court cannot adjudicate on such matters and the remedy does not also lie with the Courts. In view of the pronouncement of the Supreme Court, the remedy lies with the Legislature. In the instant case, the subject matter of the Act falls under Entry 5 of the Concurrent List in the Seventh Schedule of the Constitution and every State Legislature, subject to the provisions of Article 254 of the Constitution, is competent to carry out amendments to the Act, if the local situation obtaining in the particular State necessitates such amendment. As pointed out by learned Central Government Standing Counsel, the provision has withstood the test of time and judicial scrutiny and so far no Court has declared Section 17 of the Act ultra vires of the Constitution of India. Even the Full Bench of this Court in, Mary Sonia's case 1995 (1) KLT 644 (FB), which was rendered before the judgment of the Supreme Court in Ahmedabad Women Action Group case, 1997 (3) JT (SC) 171: (AIR 1997 SC 3614), has suggested the Central Government to take a final decision on the recommendation of the Law Commission in its report for making amendments to the Act and in spite of such a direction, the Central Government has not taken any action in this regard. The attitude adopted by the Central Government in the matter of not taking a final decision regarding the amendment of the law on the point which was recommended by the successive Law Commission of India have also been noticed by the Full Bench. The Full Bench also has observed that there is a real need to have a comprehensive reform.
13. The Law Commission of India, in its report on the law relating to Marriage and Divorce amongst Christians in India, in paragraph 79 at page 40, observed as follows:
“79. Section 17 of the Indian Divorce Act provides for a decree for dissolution passed by a District Judge being confirmed by a Special Bench of the High Court. We see no need for such a provision. The decree of divorce passed by the District Court would be open to appeal like other decrees of that Court, and that, in our opinion, is sufficient. We have also come to the conclusion that Section 17-A of the Indian Divorce Act, 1869, may be omitted, because that provision does not appear to have been availed of in practice to any appreciable extent. The purpose of that section will be sufficiently served by retaining the procedure for the passing of a decree nisi.”
The Law Commission had explained the importance of the proposal and the recommendations relating to the subject. The report also discussed in detail the main points on which the law requires revision. The latest Full Bench of this Court in, Bincy Mathew v. Sabu Abraham, 1998 (2) Ker LJ 688, has also recommended a provision for appeal to those parties who are really aggrieved by the order passed by the District Court alone need come to the High Court by filing appeal. The Bench also expressed its anguish that during the last 40 years, no steps were taken to amend the Act by the parliament by deleting certain provisions from the Statute book. It is true that the present case is an example as to how parties belonging to a particular community, who are governed by the Act, are unnecessarily put to lot of inconvenience by the provisions for confirmation. As already noticed, the Uttar Pradesh Government done away with Section 17 of the Act by a State amendment. A Special Bench of the Madhya Pradesh High Court has also made recommendation to make suitable amendments in the Act.
14. We would, therefore, like to observe that the procedure prescribed by Section 17 of the Act requiring confirmation by the High Court of a decree for dissolution of a marriage made by the District Judge prolongs the agony of the affected parties even though none of the parties is desirous of preferring an appeal. In our opinion, there is no justification for continuation of this procedure especially when no such procedure is prescribed by other Acts dealing with dissolution of marriages, namely, Special Marriage Act, 1954 and Hindu Marriage Act, 1955. In our view, there is an urgent need for making suitable amendments in the Act. In this light, we direct the Government of Kerala to bring in an amendment on the lines of Uttar Pradesh amendment as we feel that such an amendment is necessary and expedient.
15. Subject to the above directions, we hold that the provisions of Section 17 of the Act are intra vires the Constitution of India and are legally valid.
The Original Petitions have no merit and they are accordingly dismissed. No costs.
Petitions dismissed.