1. This appeal under S. 28 of the Hindu Marriage Act, 1955, to be hereinafter referred to as 'the HM Act', is preferred against the order dt. 29-11-1991 made by the Court of Civil Judge at Udupi, to be hereinafter referred to as 'the trial Court', dismissing a petition under S. 13 of the HM Act seeking dissolution of a Christian marriage by a decree of divorce, as unmaintainable.
2. The appellant and the respondent here were respectively the petitioner and the respondent in the petition before the trial Court. The marriage of the petitioner, who was a Christian, and the respondenl, who was a Hindu, was solemnised on 17-3-1977 at St. Lawrence Church, Moodubelle, by the Paris Priest of that Church by adoption of Christian form of marriage. When the Christian wife of the said marriage, which was evidenced by the Certificate of Marriage dt. 7-7-1991 issued by the Paris Priest of the above Church, presented before the trial Court a petition under S. 13(1) of the HM Act against her Hindu husband seeking dissolution of their marriage by a decree of divorce on the grounds available thereunder, that petition is dismissed as unmaintainable by an order dt. 29-11-1991 of the trial Court. It is that order which is appealed against in the present appeal by the Christian wife.
3. Sri G. S. Visweswara, learned counsel for the appellant-Christian wife, assailed before us, rather strenuously, the correctness of the trial Court's order, by which the petition filed by the Christian wife under S. 13 of the HM Act against her Hindu husband has been dismissed as unmaintainable. According to him, the HM Act, when, by its provision in S. 2, says that the HM Act applies to any person, who is a Hindu, and when, by its provision in S. 13 providing for divorce of a marriage, does not restrict its availability to a Hindu marriage, there can be no valid reason as to why its availability cannot be extended to a Christian marriage of which one of the parties is a Hindu. Further, according to him, the decision of a learned Judge of the Delhi High Court in Mrs. Pramilla Khosla v. Rajnish Kumar Khosla reported in : AIR1979Delhi78 supported his submission.
4. The submission, on the basis of which the order of the trial Court under appeal is assailed by the learned Counsel for the appellant, since raise for our decision a short but somewhat curious question -- whether a Christian marriage of which one of the parties was a Hindu, could be got dissolved by a decree of divorce under S. 13 of the HM Act at the instance of either party to such marriage, we shall proceed to consider the same.
5. There is no dispute nor can it be disputed that the marriage is a knot, by which a man and a woman get tied together as would confer upon them the status of husband and wife, while divorce is a snap on the knot of such marriage which divests its parties of their status as husband and wife and reverts them to their pre-marriage positions of man and woman.
6. The State shall endeavour to secure for the citizens a uniform Civil Code throughout the territory of India' though is an important and far-sighted directive in Art. 44 of our Constitution, by which the State is enjoined to enact a uniform Civil Code (law) for all citizens of India in substitution of diverse laws - personal laws by which marriages and matters connected thereto are governed at present in the fond hope of bringing about by marriage a better and real integration of citizens of diverse religions, faiths and cultures, such a uniform Civil Code has 10 still become a reality. Thus, when there is no uniform civil Code (law) which governs marriages between all citizens and the matters connected with such marriages, divorce of such marriages is not governed by any single Code flaw).
7. The Special Marriage Act, 1954, provides for dissolution of marriages by decrees of divorce, only if such marriages had been either solemnised under that Act or having been solemnised in any other form, had come to be registered under that Act, However, marriages solemnised under the Foreign Marriage Act, 1969, or foreign marriages recognised thereunder, could be got dissolved by decrees of divorce under the Special Marriage Act, 1954, only because of the express provision contained in S. 18 of the Foreign Marriage Act, 1969.
8. While Christian marriages are governed by the Christian Marriage Act, 1866, divorce of such Christian marriages are governed by the Divorce Act, 1869. Parsi marriage and its divorce are governed by the Parsi Marriage and Divorce Act, 1936.
9. Coming to the Muslim marriages and divorce, they are mostly governed by the personal law of Muslims except where divorce is governed by the Dissolution of Muslim Marriages Act, 1939.
10. Hindu marriage if is to be solemnised under S. 5 of the HM Act, both the parties to such marriage must be Hindus. As seen from sub-sec. (3) of S. 2 of the HM Act, a person though not a Hindu by religion has to be regarded as Hindu and the HM Act applies to him because of sub-sections (1) and (2) of S. 2 thereof. However, Hindu marriage could be solemnised in accordance with the customary rights and ceremonies of either party thereto as is envisaged in S. 7 of the HM Act.
11. Section 9 of the HM Act provides for grant of decree for restitution of conjugal rights when either the husband or the wife applies to Court.
12. Section 10 of the HM Act provides for presenting a petition by either party to a marriage -- whether solemnised before or after the commencement of the Act, seeking decree for judicial separation.
13. Section 11 of the HM Act provides that any marriage solemnised after the commencement of the Act may, on a petition presented by either party thereto against the other, be declared as a nullity.
14. Section 12 of the HM Act provides that any marriage solemnised, whether before or after the commencement of the Act, may be annulled by a decree of nullity.
15. Section 13 of the HM Act states that any marriage solemnised, whether before or after the commencement of the Act, may, on a petition presented by the husband or the wife, be dissolved by a decree for divorce on any of the grounds enumerated thereunder.
16. The above provisions contained in Ss. 9, 10, 11, 12 and 13 relating to restitution of conjugal rights, judicial separation, void marriage, voidable marriages and divorce relate to Hindu Marriage of which both the parties are Hindus alone, become obvious if regard is given to the scheme of the provisions and the setting in which they are found inasmuch as they are meant to provide for matters connected with Hindu marriage, as envisaged in S. 5 of the HM Act, of which two parties are Hindus and solemnised as envisaged in S. 7 of the HM Act.
17. Further provisions in Ss. 9 to 13 of the HM Act, become matters which occupy the concerned areas in supersession of matters, if any, operating in those areas as seen from S. 4 of the HM Act, which reads-
'4. Overriding effect of Act.-- Save as otherwise expressly provided in this Act,--
(a) any text, rule or interpretation of Hindu Law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act;
(b) any other law in force immediately before the commencement of this Act shall cease to have effect in so far as it is inconsistent with any of the provisions contained in this Act.'
When under S. 4 above, the matters referred to in Ss. 9 to 13 of the HM Act are to be regarded as matters of Hindu law, the conclusion that they are matters which concern only Hindu marriage and connected matters, is inescapable.
18. Petition for divorce, which could be presented under S. 13 of the HM Act, must necessarily relate to a Hindu marriage governed by the HM Act, also becomes obvious, as well, from the provision in S. 14 of the HM Act, which reads :
'14. No petition for divorce to be presented within one year of marriage.-- (i) Notwithstanding anything contained in this Act, it shall not be competent for any Court to entertain any petition for dissolution of marriage by a decree of divorce, unless at the date of the presentation of the petition one year has elapsed since the date of the marriage :
Provided that the Court may, upon application made to it in accordance with such rules as may be made by the High Courts in that behalf, allow a petition to be presented before one year has elapsed since the date of the marriage on the ground that the case is one of exceptional hardship to the petitioner or of exceptional depravity on the part of the respondent, but, if it appears to the Court at the hearing of the petition that the petitioner obtained leave to present the petition by any misrepresentation or concealment of the nature of the case, the Court may, if it pronounces a decree, do so subject to the condition that the decree shall not have effect until after the expiry of one year from the date of the marriage or may dismiss the petition without prejudice to any petition which may be brought after the expiration of the said one year upon the same or substantially the same facts as those alleged in support of the petition so dismissed.
(2) In disposing of any application under this section for leave to present a petition for divorce before the expiration of one year from the date of the marriage, the Court shall have regard to the interests of any children of the marriage and to the question whether there is reasonable probability of a reconciliation between the parties before the expiration of the said one year.'
Requirement of the above provision, which is intended by the Legislature not to allow a marriage to be dissolved by a decree of divorce by either party to a marriage in a huff and a hurry without allowing even the minimum time needed for making the marriage a success, if cannot be regarded as an absurdity because of the well accepted canons of construction of a statutory provision, has to necessarily relate to a Hindu marriage governed by the HM Act. If so, the question of presentation of a petition for divorce under S. 13 of the HM Act respecting a marriage, which is not a Hindu marriage governed by the HM Act, does not arise.
19. Thus, the provisions of the HM Act, if are seen in their setting, leave absolutely no room for doubting that they govern the Hindu marriage and the matters relating thereto only including the matter relating to the dissolution of Hindu marriage, as provisions of the various other Acts, to which we have adverted hereinbefore, when are seen in their setting, have left no room for doubting that they govern matters concerning specified forms of marriages and matters relating thereto including matters relating to divorce of such marriages only.
20. Coming to the decision of a teamed Judge of the Delhi High Court in Mrs. Pramilla Khosla's case (supra), from which the learned Counsel for the appellant sought to receive support for his submission that a decree of divorce of a Christian marriage, of which one of the parties is a Hindu, could be obtained under S. 13 of the HM Act, we are unable to see how it could advance the submission. It is so for the reason that it was a case where the marriage concerned having been solemnised according to Arya Samaja rites, a divorce respecting that marriage could also be got under the Hindu Marriage Act, while one of its parties -- a Christian had become an Arya Samajist to have the marriage performed as an Arya Samaja marriage. With respect to the learned Judge, who decided that case, we are unable to see how an Arya Samaja marriage, which could not have been solemnised unless both the parties to it were Arya Samajists, that is, Hindus, could have been dissolved by a decree of divorce to be got under the Divorce Act where one of the parties belongs to a Christian faith.
21. Hence, our decision on the question under consideration, is that a Christian marriage, even if one of its parties is a Hindu, cannot be got dissolved by a decree of divorce under S. 13 of the HM Act at the instance of either party to such marriage.
22. For the foregoing reasons, the order under appeal, by which a petition filed by a Christian wife of a Christian marriage for divorce under S. 13 of the HM Act has been held to be unmaintainable and dismissed, does not call for interference in this appeal,
23. In the result, this appeal fails and is dismissed without being admitted.
24. Appeal dismissed.