Swatanter Kumar, C.J.
1. Simple but a pertinent question of law challenging the constitutional validity of provisions of Section 13B of Hindu Marriage Act, 1955 (hereinafter referred to as the 'Act') insofar as it relates to the prerequisite period of separation for one year for institution of petition under Section 13B of the Act, as mandatory and also on the ground that it is arbitrary and has no nexus to the object of the said provision, arises in this petition.
2. The petitioner No. 1 was married to the petitioner No. 2 on 29th April, 2007, according to Hindu rites and customs. The marriage between the parties was registered in accordance with law. After marriage, the parties cohabited at Bombay till 2nd August, 2007 when matrimonial differences arose between the parties. According to them, the parties realized that they were not suitable to each other, their marriage had irretrievably broken down and there was no possibility of saving the marriage. There are no issues from the wedlock. Since 2nd August, 2007, the parties are living separately. Attempts for reconciliation and resettlement of the matrimonial home failed. Resultantly, with an intention to avoid any legal complications and to ensure that they do not litigate any further and to put an end to the matrimonial relationship by mutual consent without making any allegations against each other, the parties applied for dissolution of marriage by a decree of divorce by mutual consent under the provisions of Section 13B of the 'Act'. This petition for divorce by mutual consent was filed on 30th October, 2007.
3. When the matter came up before the learned Principal Judge of the Family Court, vide order dated 30th October, 2007, the petition was rejected. The petitioners, rather than assailing the said order in appeal, filed the present writ petition on the ground that the reasons recorded by the learned Principal Judge Family Court, for rejecting the petition were unconstitutional. The order dated 30th October, 2007 reads as under:
On insistence of Shri Nitish Bhutekar, Advocate, following order is passed.
The petition is filed under Section 13B of the Hindu Marriage Act, 1955, although the marriage took place on 29th April, 2007 i.e. only six months back. Section 13B does not allow the parties to come to the Court for divorce by mutual consent unless they complete one year or more separation. In this case, despite this clear provision the petition is not only filed but this order is insisted upon.
ORDER
The petition stands rejected.
4. According to the petitioners, the pre-condition that they should have lived separately for a period of one year or more for obtaining divorce by mutual consent under Section 13B of the Act is unconstitutional, arbitrary and tantamounts to an artificial classification which is impermissible and such a precondition is contrary to the object of insertion of Section 13B of the Act. It has also been the plea, raised on behalf of the petitioners, that there is no nexus between the object sought to be achieved and the precondition of one year living separately as contemplated under Section 13B. This condition is unreasonable and is not in consonance with the changing values of the society.
5. In the case of Dr. Dwaraka Bal v. Professor Nainan Mathews : AIR1953Mad792 the Court observed that the law in India in its anxiety to protect the sacred institution of marriage, has not allowed mere incompatibility of temperament to be a ground for divorce. Till the law is amended Courts must enforce the law and cannot make judge-made law by stretching law beyond its legitimate limits. The Court also said that a Judge is not the person to decide the interests of the society. When the law says a thing clearly, it must be carried out. Thus a Court cannot take into consideration that if divorce is not granted a healthy and sturdy women will go without a mate and that it would be in the interest of society to grant her divorce and allow her to marry a man she likes. Mere social good de hors the substantive law is not a concept certainly applicable. The law cannot be rendered nugatory on the ground of social good when the legislature is clear in its intent.
6. Interesting principles of law were stated by a Bench of this Court in the case of The State of Bombay v. Narasu Appa Mal : AIR1952Bom84 . The Court, while dealing with the case under the Bombay Prevention of Hindu Bigamous Marriages Act, 1945, its constitutionality and other relevant facets, stated that equality before the law is not offended if the classification which the enactment makes is based on reasonable and rationale considerations. While commenting upon the social aspects the Court repelled the contention that Hindu religion essentially made polygamy its integral part. The Court held as under:
Now a sharp distinction must be drawn between religious faith and belief and religious practices. What the State protects is religious faith and belief. If religious practices run counter to public order, morality or health or a policy of social welfare upon which the State has embarked, then the religious practices must give way before the good of the people of the State as a whole. A very interesting and instructive case is to be found in the American Reports, viz Davis v. Beason (1889) 133 U.S. 637. In that case it was contended that polygamy was part of the creed of the Mormon Church and any legislation which penalizes polygamy to the extent that it affected Mormons was contrary to the First Amendment of the Constitution which provided that Congress shall not make any law respecting the establishment of religion or forbidding the free exercise thereof. This argument was rejected, and Mr. Justice Field delivering the opinion of the Court pointed out that (p. 640):
The term 'religion' has reference to one's views of his relations to his Creator, and to the obligations they impose of reverence for his being and character, and of obedience to his will. It is often confounded with the cultus or form of worship of a particular sect, but is distinguishable from the latter.
He further pointed out that the First Amendment could not be invoked as a protection against legislation for the punishment of acts inimical to the peace, good order and morals of society. He further pointed out that (p. 640):
Marriage, while from its very nature a sacred obligation, is, nevertheless, in most civilized nations a civil contract, and usually regulated by law. Upon it society may be said to be built and out of its fruits spring social relations and social obligations and duties, with which government is necessarily required to deal.
Further on he states (p.640):
Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices.
It is only with very considerable hesitation that I would like to speak about Hindu religion, but it is rather difficult to accept the proposition that polygamy is an integral part of Hindu religion. It is perfectly true that Hindu religion recognizes the necessity of a son for religious efficacy and spiritual salvation. That same religion also recognizes the institution of adoption. Therefore, the Hindu religion provides for the continuation of the line of a Hindu male within the framework of monogamy.
7. Marriage under Hindu Law had not been treated as a contract simpliciter between two individuals but was stated to be a sacrosanct relationship between two human beings placing certain obligations and duties vis-a-vis each other. Right from ancient times, in Hindu society, marriage has been treated and dealt with as a sacrosanct relationship between the two human beings requiring performance of the respective rights and obligations between them. Divorce in Hindu marriage was concept difficult of attainment and governed by stringent laws. Any provision in Hindu Law did not by itself ipso facto or ipso jure, operated as a dissolution of the marriage nor did it give either party to the marriage an automatic right to divorce. In other words, right to apply or obtain a divorce was ever controlled by the limitations of law and was not so liberally enforcible that a husband could marry and divorce a woman at his whim and fancy. Even in modern times, the Courts took the view that even if both the parties to a Hindu Marriage get converted to a religion other than Hindu, their earlier Hindu marriage can be dissolved only under the provision of that Act. Vilayat Raj v. Sunita : AIR1983Delhi351 .
8. Prior to amendment of the Hindu Marriage Act in the year 1976, marriage of the parties could be dissolved only on the grounds stated under Section 13 of the Act and the party claiming divorce had a heavy onus to discharge strictly in relation to the ground alleged for seeking such a relief. However, after the amending Act 68 of 1976, not only various grounds stated in Section 13 were liberalized to some extent but even Section 13B was inserted in the Hindu Marriage Act. This, for the first time, provided the parties to the marriage solemnized before or after the commencement of the 1976 Amendment Act, to seek a relief for dissolution of their marriage by mutual consent. Provision of Sections 13(1) and 13(2) provide for a person seeking divorce on ground of mutual consent. The provisions of Section 13B require that three ingredients had to be' satisfied before the Court to grant such a relief to the parties; (i) the parties had been living separately for a period of more than a year, (ii) they had not been able to live together and (iii) that they have mutually agreed to dissolve the marriage. Once these three statutory conditions are satisfied then it gives jurisdiction to the Court to entertain a petition for divorce by mutual consent. Still the Court, on motion of both the parties but not earlier than six months from the date of presentation of the petition and not later than 18 months after the said date, after recording the statement of the parties and giving them an opportunity of being heard and being satisfied that averments made in the petition are true, can pass a decree declaring the marriage to be dissolved with effect from the date of decree. This procedure has been said to be mandatory and consent of the parties must exist at the time of presentation of the petition in accordance with the provisions of Section 13B(1) as well as at the time of making a motion and passing decree as per the provisions of Section 13(2) of the Act. The Supreme Court in Smt. Sureshta Devi v. Om Prakash : [1991]1SCR274 , while referring to the above stated three ingredients and explaining the meaning of the words 'living separately' and the 'one year' held as under:
7. Section 13B is in pari materia with Section 28 of the Special Marriage Act, 1954. Sub-section (1) of Section 13B requires that the petition for divorce by mutual consent must be presented to the Court jointly by both the parties. Similarly, Sub-section (2) providing for the motion before the Court for hearing of the petition should also be by both the parties.
8. There are three other requirements in Sub-section (1). They are:
(i) They have been living separately for a period of one year,
(ii) They have not been able to live together, and
(iii) They have mutually agreed that marriage should be dissolved.
9. The 'living separately' for a period of one year should be immediately preceding the presentation of the petition. It is necessary that immediately preceding the presentation of petition, the parties must have been living separately. The expression 'living separately', connotes to our mind not living like husband and wife. It has no reference to the place of living. The parties may live under the same roof by force of circumstances, and yet they may not be living as husband and wife. The parties may be living in different houses and yet they could live as husband and wife. What seems to be necessary is that they have no desire to perform marital obligations and with that mental attitude they have been living separately for a period of one year immediately preceding the presentation of the petition. The second requirement that they 'have not been able to live together' seems to indicate the concept of broken down marriage and it would not be possible to reconcile themselves. The third requirement is that they have mutually agreed that the marriage should be dissolved.
9. Of course, divergent views have been expressed by different High Courts and even by different Benches of the same High Courts. Various High Courts have taken view that period of six months for presentation of second motion is a mandatory requirement and the Courts have no jurisdiction to waive or vary such a period. Some of the judgments taking this view are, Mohinder Paul v. Gurmit Singh 2001(3) PLR 424, Vinod Kumar v. Kamlesh 2002(1) LJR 210; Nitin Ramniklal Jhaveri v. Padmini Nitin Jhaveri 1985(1) DMC 347, Hitesh Narendra Doshi v. Jesal Hitesh Doshi AIR 2000 AP 362. However, contrary view has been expressed by other High Courts in the cases of Dineshkumar Shukla v. Smt. Neeta : AIR2005MP106 , Smt. Krishna Khetarpal v. Satish Lal , Sonali w/o. Manishkumar Chandak and Anr. v. NIL : (2007)109BOMLR1698 .
10. High Court of Andhra Pradesh in the case of Hitesh Narendra Doshi v. Jesal Hitesh Doshi AIR 2000 AP 362 and this Court in Savitri w/o Sudesh Subba and Anr. v. The Principal Judge, Family Court, Nagpur W.P. No. 431 of 2006 decided on 28th February 2008 [reported in : 2008(5)MhLj400 ], have taken the view that the period of six months intervening the filing of the application and motion being taken out by the parties was strictly to be mandatory and not dispensable while Delhi High Court in Abhay Chauhan v. Ms. Rachna Singh : AIR2006Delhi18 has taken the view that a period of six months can be waived.
11. In the case of S. Devi v. Om Prakash : [1991]1SCR274 , the Supreme Court was primarily concerned with the question whether the Court would have jurisdiction to pass decree by mutual consent even if one of the parties withdraws the consent as well as the scope of jurisdiction at the time of presentation of second motion. The Supreme Court clearly held that the consent of both the parties should exist even at the time of passing of the decree. Withdrawal of consent by one party would render the Court to have no jurisdiction to pass decree by mutual consent. The Supreme Court also while holding that hearing of the parties is also necessary so that the Court would satisfy itself as to whether the consent was not a result of force or fraud or undue influence. Following dictum of the Supreme Court in this case can be usefully noticed at this stage.
In this transitional period one of the parties may have a second thought and change its mind not to proceed with the petition. It may not then be a party to the joint motion under Sub-section (2) which requires the Court to hear 'the parties'- which means both the parties. If one of the parties at the stage of inquiry withdraws his/her consent or refuses to be a willing party to the divorce, the Court gets no jurisdiction to make a decree of divorce. If the Court is held to have the power to make a decree solely based on the initial petition, it negates the whole idea of mutuality and consent for divorce. Mutual consent to the divorce is a sine qua non for passing a decree for divorce under Section 13B. Mutual consent should continue till the divorce decree is passed. It is a positive requirement for the Court to pass a decree of divorce. 'The consent must continue to decree nisi and must be valid subsisting consent when the case is heard'.
12. The primary contention raised before us is that the condition Nos. (i) and (ii) noticed (supra) are merely directory and can be suitably waived or altered by the Court depending upon the facts and circumstances of the case and compliance of these conditions is not mandatory. The parties may chose to approach the Court and file a petition under Section 13B(1) without living separately for the stated period of one year.
13. The Legislature, while introducing the Amending Act 1976, did take into consideration the following: (i) to liberalise the provisions relating to divorce (ii) to enable expeditious disposal of proceedings under the Act and (iii) to remove certain anomalies and handicaps in the existing law. These ingredients are evident from the plain language of the section and do not leave any scope for ambiguity. Thus, it would not be necessary for the Court to expand its meaning and convert a mandatory provision into directory which may even result in defeating the object of the provision. In New India Sugar Mills Ltd. v. Commissioner of Sales Tax, Bihar : AIR1963SC1207 , the Supreme Court observed thus--
It is a recognised rule of interpretation of statutes that expressions used therein should ordinarily be understood in a sense in which they best harmonise with the object of the statute, and which effectuate the object of the Legislature.
13.1. Provisions of Section 13B of the Act are mandatory and the condition precedent to the presentation of the petition set out therein had to be satisfied strictly. Further, Section 14 of the Act prior to 1976 amendment had put a further bar stating that notwithstanding anything contained in the Act, the Courts shall not be competent to entertain any petition for dissolution of marriage by a decree of divorce unless the petition had been presented after a lapse of three years since the date of marriage. However, proviso to Section 14(1) provided an exception to the effect that a petition could be presented even before the expiry of the said period of three years if circumstances of exceptional hardship to the petitioner or of exceptional depravity on the part of the respondent existed and in such cases the Courts may, after hearing, pronounce a decree subject to the condition that the decree shall not have effect until after the expiry of three years. In this backdrop and while amending the Act in the year 1976, the Legislature while keeping the three of its aforementioned objects in mind, reduced the period from three years to one year and maintained the language of Section 14 as well as its proviso otherwise intact. In other words, the Legislature did not alter or change the contents of ingredients of Section 14 except to the extent of reducing the period from three years to one year. This is despite the fact that the Law Commission in its recommendations relating to Section 14 of the Act in its 59th Report in March, 1974 had asked for deletion of Section 14 of the Act.
14. As already noticed, by the same Act 68 of 1976, Section 14 was amended and Section 13B was introduced in the Act. The language of Section 13B is clear and unambiguous. The Legislature in its wisdom did not introduce any relaxation in Section 13B of the Act. There is nothing in the language of section which can suggest that the provisions of Section 13B are simpliciter procedurally directed and can be moulded by the Court in exercise of its judicial discretion depending on the facts and circumstances of the case. This provision is intended to liberalise the provisions relating to divorce. Being aware of the existing provisions, report of the Law Commission and the need of the society still the Legislature chose not to add any proviso granting relaxation to the conditions imposed under Section 13B(1) and/or 13B(2). It would not be permissible for the Court to read the expression 'living separately for a period of one year or more' as by adding the word 'may' or for such period as the Court in its discretion may consider appropriate. We shall shortly proceed to discuss the purpose of introduction of Section 13B and its object. It is a settled rule of interpretation that Court while interpreting the statutory provisions would not add or subtract the words from the section nor would it give meaning to the language of the section other than what is intended on the plain reading of the provision. Reference can be made to the judgment of the Supreme Court in Vijayalakshmamma and Anr. v. B.T. Shankar : [2001]2SCR769 where the Court held as under:
21. The nature, object and purpose of the Act in question has already been noticed supra. Parliament has consciously and deliberately effected certain vital and substantial changes in the personal law of the Hindus in several branches including the law relating to adoptions. The statement of Objects and Reasons, so far as it pertains to the law on adoption reads as follows:
This part of the Hindu Code deals with the subject of adoptions and maintenance among Hindus.
2. With the passing of the Hindu Succession Act, 1956, which treats sons and daughters equally in the matter of succession, it has now become possible to simplify the law of adoption among Hindus. The Bill provides for the adoption of boys as well as girls. There is no longer any justification for allowing a husband to prevent his wife from taking a child in adoption after his death. The adoption made by a Hindu widow will hereafter be in her own right. No person need be divested of any property which has vested in him by reason only of the fact that subsequent to such vesting an adoption has been made. This rule of divesting has been the cause of many a ruinous litigation.
(emphasis supplied)
22. This Court also endorsed the said position in the decision reported in G. Appaswami Chettiar v. R. Sarangapani Chettiar AIR vide para 13. The extent to which and the areas and aspects or facets of old Hindu law which required modernisation, modification and alteration are matters of legislative policy and merely because a particular change has been brought into effect in respect of one facet of law in force and a provision has been made specifically only to that limited extent, the Courts can neither by means of an interpretative process nor under the guise of ensuring parity in what it may seem to the Court would be desirable to achieve uniformity (an area once again exclusively pertaining to policy of legislation) add to or alter the language, structure and content of a provision by reading into it what was not specifically intended or what perhaps was deliberately and consciously avoided by Parliament itself. Section 7 bears the caption 'Capacity of a male Hindu to take in adoption' in the same manner the immediately following Section 8 bears the heading 'Capacity of a female Hindu to take in adoption'. When Parliament resolved to provide for and insist upon the obtaining of the consent of the wife or if there are more than one living wife the consent of all of them, unless they or any one of them suffered any of the enumerated infirmities rendering such consent unnecessary, the conscious and positive as well as deliberate omission to provide for a female Hindu seeking or obtaining any such consent from a co or junior widow is a definite pointer to indicate that the legislative intent and determination was not to impose any such clog on the power specifically conferred upon the female Hindu may be for the obvious reason that under the scheme of the Act the Hindu female has been enabled and empowered to adopt not only to herself but also to her husband, and also in tune with the changed and modern concept of equality of women and their capabilities to decide independently statutorily recognised, and the very reason for insisting upon such an authority or consent from the husband or the sapindas under the old Hindu law having lost its basis and thereby ceased to be of any relevance or valid purpose whatsoever. In such circumstances, acceding to the submission to read into Section 8 the stipulation in the proviso to Section 7 with the Explanation thereto would amount to legislation by Courts on the lines as to what in its view the law should be, which is wholly impermissible for Courts, de hors any justification or necessity for such a provision. In our view, there is no necessity even for such a provision in the context of the changed circumstances brought about by the various alterations and amendments to the Hindu Code regulating hitherto the personal law of the Hindus.
15. A Division Bench of Karnataka High Court in the case of Munesh v. Smt. Anasuyemma @ Parvathi 2001 Karnataka 355 as well as the Punjab High Court in the case of Smt. Krishna Khetarpal v. Satish Lal , took the view that no decree can be passed otherwise than under Section 13B for divorce on the basis of the compromise and that the conditions stated therein should be satisfied. Furthermore, the Court should also satisfy itself of the averments made in the petition.
16. In a Parliamentary Democracy, the Council of Ministers, commanding, as it must, the majority in the Legislature, virtually controls the Legislature. And a judiciary, however independent, is never independent in the sense that, by and large, it is bound to apply whatever laws are made by the Legislature. Whatever rule or statutory interpretations are required i.e. doctrine of liberal construction, plain reading, purposive approach, harmonious reading and even that of strict construction would not permit interpretation of the provisions which will have the effect of altering the law itself. The Constitution mandates legislature to be framers of the law which is interpreted or at best granted wider meaning to the provisions for objective implementation of law. Consistent views of the Courts have been that the Courts, during the process of interpretation of statute, would not venture to legislate or create a law particularly which would be directly opposite to legislative intent. This principle has to be kept in mind by us while analysing the merit of the submission made by the learned Counsel appearing for the petitioner, relating to Section 13B of the Act. Hindu Marriage Act is just one of the legal facets of Hindu Law. Mayne in his First Edition of his Treatise on Hindu Law and Usage said 'Hindu Law has the oldest pedigree of any known system of jurisprudence, and even now it shows no signs of decrepitude'.
17. In Mulla's Hindu Law, the oft-referred treatise on the subject, the text of Manu and Yajnavalkya, it has been quoted and declared that there are three main sources of Hindu Dharma or law i.e. (1) the Sruti, (2) the Smriti and (3) Custom. Hindu Law is also described as 'that body of law in its entirety which originated from the religious scriptures of various indigenous communities of this century'. The law, normally, could be traced into legal and historical sources. Essentials of ancient Hindu Law were varied to bring it in line with the constitutional mandate and need of the society.
18. Referring to Article 44 of the Constitution, a Constitutional Bench of the Supreme Court in the case of Mohd. Ahmed Khan v. Shah Bano Begum : 1985CriLJ875 had said that 'a beginning has to be made if the Constitution is to have any meaning'. This view was reiterated in the case of Jorden Diengdeh v. S.S. Chopra : AIR1985SC935 , where the Court held that 'the time has come for the intervention of the Legislature in these matters to provide for a uniform Code of marriage and divorce.'
19. It is a settled norm that every procedure of law should answer the test of reasonableness. It must be right, just and fair and not arbitrary and also to be in conformity with the constitutional mandate under Article 14 of the Constitution. If the legislative intent is to contain the social inevitability of dissolution of marriages, the law should be interpreted to ensure just and fair trial to a marriage which the parties solemnize of their own accord and free will. If the argument addressed on behalf of the petitioner is to be accepted then petitions for divorce would be filed just a few days after the marriage. There would be no possible attempt on the part of the parties to even fairly understand each other and resolve certain minor differences which may appear as 'teething problem' of newly married life. Humane efforts are essential to resolve the differences by affection and mutuality rather than permit them to aggravate and become a burden that the parties would be left with the only option of dissolving the marriage. Doctrine of reasonable interpretation, thus, can fairly be applied to these provisions. On the other hand, liberal or even very strict interpretation as opposed to literal construction may frustrate the legislative object in enacting these provisions. Institution of marriage is primarily to add stability to the social values and social living. Recourse to dissolution of marriage should be after the parties have seriously pondered over various facets of their married life and had a reasonable time to adjust themselves for making their matrimonial home a place to live happily.
20. Purposive approach is not unknown to Indian laws. In modern jurisprudence, we have taken flair to discard liberal approach in favour of purposive approach. Dharmashastra advocates purposive approach since ancient times even though their reverence for the letters of the sacred law was almost devotional. It was considered that decision was never to be made solely by having recourse to the letters of the law, for a decision not according to the reason of law would occasion miscarriage of justice. Letters of law and reason of law are not synonymous terms but they both help in proper interpretation of law. Reason for enacting the law could be the reason for sustaining the law and it need in no way destroy the letters of law. The Legislature in its wisdom and being aware of other existing provisions of the Act, other laws and the opinion of the society, opted for insertion of Section 13B in its present form without any intent to convert divorce from statutory satisfaction to whim of the parties. The period of one year 'living separately' is sine qua non to the filing of the petition under Section 13B and as such, its waiver would be impermissible as per any settled canons of interpretation. The Court gets jurisdiction to entertain and decide the petition only after these ingredients are satisfied. Non-compliance of these provisions may even affect the jurisdiction of the Court as the petition would lie beyond the statutorily specified essentials and, thus, in law, be a defective or an incomplete petition.
21. Some divergent views prevailed whether under Hindu Law, as applied by Courts in India, marriage was a sacrament or both, a sacrament and contract. The Courts expressed the view that it was not merely a sacrament but also a civil contract. This concept was examined in relation to determination of various cases for reliefs flowing from the marriage between the parties. Introduction of the principle of a civil contract while it helped to support the conclusion reached in the particular case was, however, apt to give rise to a misconception and greater difficulties in other cases. In Hindu Law, the admixture of religion and ethics with legal precepts was naturally congruent. The ultimate view followed by the Courts has been that it is not always to draw any hard line of logical demarcation between matters, secular and religious, because certain questions such as for instance as marriage and adoption had the aspects of both. Marriage under Hindu Law was primarily and essentially a sacrament. Having elements both, religion and secularity, it was the source and foundation of the status of the parties; and of their right to associate in religious observances and also of correlative rights and duties in temporal matters. Under Hindu Marriage Act, the marriage must be solemnised in accordance with the customary rites and ceremonies of at least one of the parties thereto and must fulfil the conditions prescribed for the same. The Act may not have used the expression 'sacramental marriage' but speaks of a 'Hindu marriage' solemnized in accordance with the customary rites and ceremonies of either party, presumably because of the very wide connotation of the expression 'Hindu' and the inappropriateness of emphasising the sacramental aspects when the customary rights and ceremonies are to be solemnised. The element of consent is important as well. Thus, Hindu marriage is essentially to be construed as a sacrament coupled with the rights and duties arising under the provisions of the Act.
22. It will be useful to notice at this juncture the case of Smt. Saroj Rani v. Sudarshan Kumar Chadha : [1985]1SCR303 , where the Supreme Court was concerned primarily with the constitutional validity of Section 9 of the Hindu Marriage Act and while holding that the provision were not ultra vires, the Court held as under:
14. Having considered the views of the learned single judge of the Andhra Pradesh High Court and that of learned single judge of Delhi High Court, we prefer to accept on this aspect namely on the validity of Section 9 of the said Act the views of the learned single judge of the Delhi High Court. It may be mentioned that conjugal rights may be viewed in its proper perspective by keeping in mind the dictionary meaning of the expression 'conjugal'. Shorter Oxford English Dictionary, 3rd Edn. Vol. I page 371 notes the meaning of 'conjugal' as 'of or pertaining to marriage or to husband and wife in their relations to each other'. In the Dictionary of English Law, 1959 Edn. At page 453, Earl Jowitt defines 'conjugal rights' thus:
The right which husband and wife have to each other's society and marital intercourse. The suit for restitution of conjugal rights is a matrimonial suit, cognisable in the Divorce Court, which is brought whenever either the husband or the wife lives separate from the other without any sufficient reason, in which case the Court will decree restitution of conjugal rights (Matrimonial Causes Act, 1950, Section 15), but will not enforce it by attachment, substituting however for attachment, if the wife be the petitioner, an order for periodical payments by the husband to the wife (Section 22).
Conjugal rights cannot be enforced by the act of either party, and a husband cannot seize and detain his wife by force (R. v. Jackson 1891) 1QB 671.
15. In India it may be borne in mind that conjugal rights i.e. right of the husband or the wife to the society of the other spouse is not merely creature of the statute. Such a right is inherent in the very institution of marriage itself. See in this connection Mulla's Hindu Law - 15th Edn. p. 567 - Para 443. There are sufficient safeguards in Section 9 to prevent it from being a tyranny. The importance of the concept of conjugal rights can be viewed in the light of Law Commission - 71st Report on the Hindu Marriage Act, 1955 - 'Irretrievable Breakdown of Marriage as a Ground of Divorce. Para 6.5 where it is stated thus--
Moreover, the essence of marriage is a sharing of common life, a sharing of all the happiness that life has to offer and all the misery that has to be faced in life, an experience of the joy that comes from enjoying, in common things of the matter and of the spirit and from showering love and affection on one's offspring. Living together is a symbol of such sharing in all its aspects. Living apart is a symbol indicating the negation of such sharing. It is indicative of a disruption of the essence of marriage 'breakdown' -and if it continues for a fairly long period, it would indicate destruction of the essence of marriage-' irretrievable breakdown.
(Emphasis supplied by us)
23. Of course, one idea behind the reasoned reform is to liberalise law relating to marriages. Hindu marriage is complete only after the performance of Shastrik rites and ceremonies or by customary rites and ceremonies prevalent on the side of either party to the marriage. According to Shastrik ceremony marriage, Saptapadi is essential. Prior to the amendment Act of 1976, the remedy of divorce under Hindu Marriage Act was entirely based upon guilt theory i.e. where one party accused other of having committed acts and deeds which would entitle other for seeking divorce in compliance with the provisions of the Act. The 1976 amendments added a concept of mutuality in relation to dissolution of marriage. The purpose of introducing mutuality was not to dissolve the marriages between the newly wed at the drop of the hat without any reason/justification. Differences of trivial nature and inconveniences simpliciter arising in day-to-day life are obviously not the grounds intended by the legislator to be grounds for dissolution of marriage by mutual consent, particularly before seriously attempting for proper reconciliation. The purpose of providing time is to give an opportunity to the parties to harmonise their lives rather than taking steps hastily to destroy the institution of marriage and convert Hindu marriage purely to a contractual relationship. The basic human and social problem is of maladjustment of couples, as marriage could fail not because of wickedness of one party or the other but they just fail. Many couples despite attempts of reconciliation over a reasonable time and despite of trying their best to make their marriages a success, may still fail and take recourse to dissolution of marriage. But every trivial difference may not be a justifiable ground for invoking this provision without permitting the statutory period to lapse. Educated and more civilised persons are expected to have greater respect for the institution of marriage and to their togetherness. In their togetherness, they could always make space for each other's shadow. This maladjustment should discernly be distinguished and understood in law from intransigent incompitability or irretrievable breakdown of marriage. The principle of breakdown has found recognition in different forms. Somewhere such breakdown may be left to be judged under the discretion of the Court while in the other, the Legislature may provide the criterion and impose certain limitations. Section 13B of the Act is a combination to some extent of both these principles. It is not necessary for any party to prove culpability or guilt or innocence or either of them but marriage is expected to be dissolved because it has broken down irretrievably and it should satisfy the limitation stated in the provisions. It is evident that if divorce is made too easy or too difficult, both will result in frustrating the legislative object and the rule of reasonable interpretation is best applied to such provisions. In matters of divorce, the Court has to view not in terms of success or failure of a legal action alone but also examine a social therapeutic problem which needs a socially desirable, humane and just solution.
24. The learned Counsel appearing for the petitioner was unable to make good his submission or any plausible ground that provisions of Section 13B, insofar as it imposes the condition requiring parties to live separately for a period of one year prior to filing of the petition, is unconstitutional or it is not in line with the object of the statute. The Act is a social legislation primarily intended to regulate and control the law relating to marriage and divorce. The Act specifically accepts the customary law to the extent indicated in the provisions. The legislative intent and judicial pronouncements in such matters have a great impact on the social values and the institution of marriage. Both these factors are relevant considerations and have to be kept in mind by the Court while interpreting or adjudicating upon the vires of these provisions. All that the provision requires is the petition for divorce on mutual consent should be filed at least not before the period of one year immediately preceding the presentation of the petition when the parties live separately. This period is intended to provide healing time to the parties to seriously ponder over their differences and settle their minds so as to know whether their disputes or differences are capable of resolution and whether they could restore their matrimonial home happily or the differences are of such kind or they belong to such class where continuation of matrimonial relationship is impossible as it has irretrievably broken down. If the continuation of the marriage results in continued mental torture, there is no compatibility and the parties would be free to ask for the relief of dissolution. Liberal construction, as suggested by the petitioner, in fact, would frustrate the very object of the Act and encourage complete disharmony in the continuance of institution of marriage and may even be without a rationale reason.
24.1. The legislature after considering various facets, in its wisdom, has provided the period of one year when parties would live separately and then alone approach the Court of law for a decree of divorce by mutual consent. The school of thought advocating instant dissolution of marriage on the pretext of social freedom has obviously not found favour with the legislature. There is no justification for the Court to grant such a meaning to the provisions of the section. This stage should not come in a hurried manner by impulsive decisions taken in the heat of the moment. It goes with the principle of canons of common prudent human behaviour that you must think objectively, purposefully and avoid hasty decisions. Human behaviour is not static. It alters with time and situation. Objectivity and rationality should be the foundation of such vital decisions and they ought not to be taken casually to avoid little inconveniences. Every difference or little inconvenience in married life necessarily would not result in irretrievable breakdown of the marriage as most of such differences/ inconveniences can be amicably resolved provided parties are given the time and space to consider and reconsider their decisions rather than rushing to the Court for dissolving the marriage. For example, where a couple has just been married, they may instantly on a small issue or a difference of immaterial consequences, may rush to the Court because of hurt ego or otherwise and decide to dissolve their marriage within a few days after marriage is solemnised.
24.2. Hindu marriage being a sacrament, in the matters of divorce, an approach of serious reconsideration over a reasonable time coupled with limitations of law is preferred rather than of instant actions and reactions resulting in declaring their marriage as failure. Complete procedure is provided under Section 13B which is in consonance with law and constitutional mandate. None of the provisions of Section 13B affects mandate of equality before law or equal treatment in law. Merely because the Legislature in its wisdom requires the parties to wait for a period of one year while living separately, it can neither be termed as unconstitutional or having no nexus with the object of the Act. As already noticed, marriage is performed in accordance with the customary rites of the community, the family and friends are effectively involved in a marriage of the parties. Once the marriage is solemnised, it is expected from the family and the friends that they would make all efforts to save the marriage between the parties and help them to overcome their differences and difficulties. Undue anxiety to have recourse to legal proceedings attracts young generation as it appears to be an easy resolution of their problems. This may appear to be so at the first blush but when examined in some depth with reflections on consequences and effects of such an approach, it turns out to be more disadvantageous than beneficial to the parties. In the age of Information Technology with modernization in various facets of human life, tendency to take impulsive decisions is on the rise. Tolerance in its basic application, as opposed to hurried, ill considered decisions, is on the decline. Today when the entire world has become a global family, there is tremendous scope for better mutual understanding and sensitive attitude towards human relationship even within family. Ability to act faster in the modernised age necessarily must not result in instant decisions relating to delicate human relationship. It is socially and even legally obligatory for the parties to attempt a serious reconciliation of a failing matrimonial relationship and even the Courts are duty bound to ensure that such an attempt is made. Like commercial commodities and/or services, marriage should not become a commodity as it will prove disastrous to the social fabric and the very institution of marriage under the Hindu Law. Impulsive decisions to be recognized by law without even affording an opportunity to seriously ponder over the marital issues is not what the legislature had mandated in the language of Section 13B of the Act. Instantaneous reaction to a situation may be arising out of the mistake or error on part of either of the spouse and, therefore, to dissolve the marriage between them without even letting a reasonable time to pass, would not be in conformity with the concept of the marriage being a sacrament backed by legal provisions. Impulsiveness in human behaviour is a factor which even according to the Psychologist would adversely affect rational decisions in human relationship.
25. Social tolerance understood in its correct perspective would take in its ambit individual tolerance and tolerance within family. It is essential that spouse should have certain element of tolerance and better understanding for harmonious relationship. Mutual respect should co-exist with temperamental harmony within the family and parties to a marriage should always be provided with fair opportunity and environment before they take serious decisions affecting the marital life. Tremendous increase in institution of divorce petitions either by mutual consent or otherwise may not be considered as a sign of social freedom or progressiveness but it exhibits intolerance. Changing socio-economic conditions and effect of modernisation may encourage persons to adopt liberal lifestyle but it should not be to such an extent that sanctity of institution of marriage and the law governing the same is seriously prejudiced. The shift from 'cannot live without you' to 'cannot live with you' may sound in poetic rhythm or may reflect phonetic similarity but viewed from the angle of law, social values and concept of marriage being a sacrament, the gap between the two is very wide. This distance is intended to be covered by bridges formed from proper advice, counselling, expiry of reasonable time (healing period) providing opportunity to the parties to arrive at a balanced decision. They are expected during this period to see life 'without each other' in contrast to 'with each other'. They are required to think about the inconveniences and hardships which they would face individually and together and impact of their collective decision on their social life, welfare of the family and the society of which they are part. They are expected to put their minds together to examine the cause of irritations or inconveniences in their married life and weigh it against a happy married life which possibly could be revived. Impulsive and abrupt decisions in relation to such a vital aspect of life should normally be avoided. The period of separation prior to presentation of petition for divorce could safely be treated as a healing or cooling period for the parties which enable them to reassure each other of their collective existence.
26. Whenever law is applied to a social problem, it is bound to have some inconvenience or hardship to some individuals. Such inconvenience or hardship should be examined from the point of view of proportionality of the result and social object sought to be achieved by implementation of the law on its plain reading. In the case of Bharat Petroleum Corporation Ltd. v. Maddula Ratnavalli and Ors. : (2007)6SCC81 , the Supreme Court while analysing the scope or power of the Court to interprete law with pragmatic and consistent view held that legislative intent has to be found out and effectuated by giving proper meaning and 'law is part of social reality' and that law could not be interpreted to cause oppression, the Court held as under:
18. We are, however, not oblivious of the legal principle that only cause a statute causes hardship, the same may not be declared ultra vires (dura lex sed lex). We may, in this regard, notice certain principles.
19. In Raghunath Rai Bareja v. Punjab National Bank it is stated SCC 241-42, para 29
29. Learned Counsel for the respondent-Bank submitted that it will be very unfair if the appellant who is a guarantor of the loan, and Director of the Company which took the loan, avoids paying the debt. While we fully agree with the learned Counsel that equity is wholly in favour of the respondent-Bank, since obviously a bank should be allowed to recover its debts, we must, however, state that it is well settled that when there is a conflict between law and equity, it is the law which has to prevail, in accordance with the Latin maxim 'dura lex sed lex', which means 'the law is hard, but it is the law'. Equity can only supplement the law, but it cannot supplant or override it.
20. A statute, however, must be construed justly. An unjust law is no law at all (lex injusta non est lex)..
28. In M.L. Karma v. Chairman, New India Assurance Co. Ltd. this Court held SCC p.41, para 4
The Court ought not to interpret the statutory provisions, unless compelled by their language, in such a manner as would involve its unconstitutionality, since the legislature or the rule-making authority is presumed to enact a law which does not contravene or violate the constitutiorial provisions. Therefore, there is a presumption in favour of constitutionality of a legislation or statutory rule unless ex facie it violates the fundamental rights guaranteed under Part III of the Constitution. If the provisions of a law or the rule is construed in such a way as would make it consistent with the Constitution and another interpretation would render the provision or the rule unconstitutional, the Court would lean in favour of the former construction.
27. In Promotors and Builders Association of Pune v. Pune Municipal Corporation and Ors. : (2007)6SCC143 , the Supreme Court observed as under:
11...These words are important and cannot be ignored. They have to be given their natural meaning. In Union of India v. Hansoli Devi it has been held that it is a cardinal principle of construction of a statute that when the language of the statute is plain and unambiguous, then the Court must give effect to the words used in the statute and it would not be open to the Court to adopt hypothetical construction on the ground that such construction is more consistent with the alleged object and the policy of the Act. In Nathi Devi v. Radha Devi Gupta it was emphasised that it is well settled that in interpreting a statute, effort should be made to give effect to each and every word used by the legislature. The Courts always presume that the legislature inserted every part of a statute for a purpose and the legislative intention is that every part of the statute should have effect. In Ganga Prasad Verma (Dr.) v. State of Bihar it has been held that where the language of the Act is clear and explicit, the Court must give effect to it, whatever may be the consequences, for in that case the words of the statute speak the intention of the legislature.
28. Still in the case of Visitor, AMU and Anr. v. K.S. Misra : (2007)8SCC593 , the Court commenting on the process of interpretation held as under:
13...It is well-settled principle of interpretation of the statute that it is incumbent upon the Court to avoid a construction, if reasonably permissible on the language, which will render a part of the statute devoid of any meaning or application. The Courts always presume that the legislature inserted every part thereof for a purpose and the legislative intent is that every part of the statute should have effect. The legislature is deemed not to waste its words or to say anything in vain and a construction which attributes redundancy to the legislature will not be accepted except for compelling reasons. It is not a sound principle of construction to brush aside words in a statute as being in apposite surplusage, if they can have appropriate application in circumstances conceivably within the contemplation of the statute. (See Principles of Statutory Interpretation by Justice G.P. Singh, 9th Edn., p. 68)
29. The Supreme Court in the case of T.N. State Electricity Board v. Central Electricity Regulatory Commission and Ors. (2007) 7 SCC 636, also with approval, reiterated the settled principal that rule of literal interpretation requires that plain interpretation should be applied and the Courts should not expand intent and meaning of an expression where language is plain and explicit and does not admit of any doubtful interpretation. The words of any language are capable of referring to different referents in different contexts and times. The legislature is functus officio once the law is enacted and process of its interpretation by Court begins. While interpreting the provision, the Court would keep in mind difference of degree of inconvenience and social good, but as said in the words of Lord Jowitt, L.C., 'There is no possibility of mistaking midnight for noon; but at what precise moment twilight becomes darkness is hard to determine'. Legislation in a modern State is actuated with some policy to curb some public evil or to effectuate some public benefit. The legislation is primarily directed to the problems before the legislature based on information derived from past and present experience. Where the language is not lacking in clarity and precision, there can hardly be a controversy in construction of such provision. The problems are to be resolved as best as it is possible but the approach essentially should be consistent with the words used and the provisions indicated in the statute.
30. The intention of the Legislature thus assimilates two aspects. In one aspect it carries the concept of meaning i.e. what the words mean and in another aspect it conveys the concept of purpose and object or the reason and spirit pervading through the statutes. The Court would also have to consider meaning of the words used in the enactment in the light of any discernible purpose or object which comprehends the mischief and its remedy to which the enactment is directed. In all normal cases and primarily the language employed is the determinative factor of legislative intention. The first and primary rule of construction, said Gajendragadkar, J. is that the intention of the legislature must be found in the words used by the Legislature itself.
31. While interpreting the statute, the objects and reasons of a Bill may not be treated as absolute indicators or a definite guide to the Courts but certainly they are relevant consideration. While interpreting the provision, they do hold the key in knowing the factors leading for change in law as well as object that is sought to be achieved by the legislature. Reference can usefully be made to the object and reasons of an enactment while interpreting its provisions.
32. Freedom of the Court in interpreting a provision also has to be contained within permissible limits for even the Constitution does not give unlimited powers to anyone including the Judges as the law should not be subverted and the Rule of law must prevail. Creativity would not extend in rendering the law ineffective or that the law is not the one enacted by the Legislature. Equally true it is that few examples cannot be taken as a criteria for generalizing a problem of inconvenience. The interpretation of law would depend upon rationalisation of the provision, keeping in view its general impact on society as a whole as the law has not been enacted for few people governed by the Hindu Law who may feel it to be socially inconvenient to them.
33. The Court would look into all relevant circumstances to set aside the meaning and interpretation of a provision. According to Brett, L.J., the inconvenience necessitating a departure from the ordinary sense of the words should not only be great but should also be what he calls an 'absurd inconvenience'. Moreover, individual cases of hardship or injustice have no bearing for rejecting the natural construction, and it is only when the natural construction leads to some general hardship or injustice' and some other construction is reasonably open that the natural construction may be departed from. It is often found that laws enacted for the general advantage do result in individual hardship; for example laws of Limitation, Registration, although enacted for the public benefit, may work injustice in particular cases but that is hardly any reason to depart from the normal rule to relieve the supposed hardship or injustice in such cases. It is the duty of all Courts of justice, said Lord Campbel, 'to take care for the general good of the community, that hard cases do not make bad law.'
34. In light of the above principles, now we may examine the circumstances of inconvenience or hardship pleaded by the petitioners. The petitioners were married on 29th April, 2007 and four months after their marriage i.e. On 2nd August, 2007, they claimed to have realised that it is not possible for them to live together as their marriage was not consummated. They started living separately since then and filed a petition on 30th October, 2007 for decree of divorce by mutual consent. The inconvenience pleaded is that they have to stay separately for few months more before they can present the petition in accordance with the provisions of Section 13B of the Act. This inconvenience or hardship is more imaginary than a reality. There is no specific averment made in the petition that any attempts for reconciliation were made. No facts have been stated in the petition to show that the parties had made any effort to resolve their differences. Both of them claim to be educated but their respective education has not directed them towards the path of reconciliation and without any substantial reason (as none has been stated in the petition), they have decided to dissolve their marriage. The scheme of the Act and the legislative intent is clear that the parties should have time to consider and reconsider their decision before they come to a irreversible decision of dissolving their marriage. The inconvenience of the petitioners that they have to stay separate for few months more is disproportionate to the social good and legislative object of fair chance of survival of marriage. The balance clearly tilts in favour of the legislation rather than it being ultra vires. We have already noticed that Hindu marriage is a sacrament coupled with an element of contract supported by statutory provisions. Thus, it cannot be treated as a contract simpliciter which is capable of being abruptly determined at the whim and fancy of the parties to the marriage. Any approach to the contrary will adversely affect the social fabric and the institution of marriage. The parties to marriage should realise and in fact, the legislative intent require that they be made to realise their obligation towards each other and the family, in terms of law and its social and sacrosanct values. The law requires them to stay separately for a period of one year before presenting a petition for divorce by mutual consent which can hardly be termed as an exceptional inconvenience or hardship vitiating the law. Even cases of extreme hardship are not left without remedy under the scheme of the Act. A petition for divorce by mutual consent has to be treated on different footings and it must satisfy the conditions precedent to presentation of such a petition and it is obligatory upon the Court to satisfy itself regarding solemnisation of marriage and correctness of the averments made in the petition. Then alone a decree under this special provision can follow. No hardship or inconvenience is projected by the petifrokers to seriously challenge the constitutional validity of Section 13B of the Act.
35. We are unable to assent to the submissions made on behalf of the petitioners that the provisions of Section 13B of the Act are ultra vires to the constitutional mandate and/or great hardship or inconvenience flow therefrom which has the effect of interfering with the fundamental freedom guaranteed under the Constitution.
36. In view of the foregoing reasons, we find no merit in the petition. The petition is accordingly dismissed.