Anil Kumar Mahsi v.

Union of India, (1994) 5 SCC 704

Facts:
The hearing on this petition is limited to determining the legality of “Section 10 of the Indian
Divorce Act of 1869”. On October 8, 1986, the petitioner married Respondent 2, Monika in a
Methodist Church in Muzaffarpur, Bihar, according to Christian rituals. On October 10,
1986, the newlyweds returned to Delhi. Respondent was abandoned by Monika since
December 26, 1986, as stated in the petition. The petitioner also claims that she worked as a
teacher at St. Mary Girls' High School in Deogarh, Bihar. Monika, on the other hand, left the
matrimonial house on December 26, 1986, two months and a fortnight later and never
returned. They were living apart without any dispute.

Despite receiving notice and being informed that the petitioner had deposited Rs 3000 for her
fees in visiting the Court, as well as the help of a Senior Advocate, Shri K.K. Venugopal, to
prosecute her case, Monika has not filed a reply or visited the Court. On the other side, in a
letter dated 5-1-1993, she informed the Court that she would be unable to attend the Court
and that she would abide by the Court's judgement.

Following the hearing, the parties were given oral instructions to submit their written
responses. The petitioner was to make his written contributions first, and the respondents
were to file theirs two weeks later. Despite our listing the issue on 19-1-1994 again to remind
the parties to make their written contributions, the petitioner has not done so, and the
respondents have not filed their written submissions as a result. As a result, we are going to
give this decision based on the oral submissions.

Legal Issues:
1. 1. Are the provisions of Section 10 of the 1869 Divorce Act discriminatory towards
the spouse and hence in violation of Article 14 of the Constitution?
2. In terms of the basis of Adultery, who is in a better position and who is at unfairness?
3. Is it possible for a husband to seek dissolution of marriage simply by marrying
another guy, whether or not they have exchanged religious professions?
4. Are people permitted to marry if they refuse to adhere to the Indian Divorce Act or
any other personal law?

Analysis and Conclusion:

According to Section 10 of the Indian Divorce Act, 1869- “When husband may petition for
dissolution — Any husband may present a petition to the District Court or to the High Court,
praying that his marriage may be dissolved on the ground that his wife has, since the
solemnization thereof, been guilty of adultery.

When wife may petition for dissolution - Any wife may present a petition to the District
Court or to the High Court, praying that her marriage may be dissolved on the ground that
since the solemnization thereof, her husband has exchanged his profession of Christianity for
the profession of some other religion, and gone through a form of marriage with another
woman;

or has been guilty of incestuous adultery,

or of bigamy with adultery,

or of marriage with another woman with adultery,

or of rape, sodomy or bestiality,

or of adultery coupled with such cruelty as without adultery would have entitled her to a
divorce a mensa et thoro,

or of adultery coupled with desertion, without reasonable excuse, for two years or upwards.”

It is evident that, in terms of the foundation of adultery, the husband is in a better position
than the woman, because proving “adultery simpliciter” by her husband is insufficient. The
woman is clearly discriminated against in this regard. The wife must also prove that her
husband married another woman. While the husband can only seek dissolution of marriage
for adultery, he does not put his wife at a disadvantage because a simple marriage with
another man, whether or not after changing professions of faith, would give the husband
grounds to seek dissolution of marriage. As a result, the woman appears to be at a
disadvantage in this situation.

While the husband can only seek dissolution of marriage for adultery, he does not put his
wife at a disadvantage because a simple marriage with another man, whether or not after
changing professions of faith, would give the husband grounds to seek dissolution of
marriage. As a result, the woman appears to be at a disadvantage in this situation.

For the same reasons, it is difficult to argue that the provisions of Section 10 of the Act are
discriminatory against the spouse.
As a result, I find no validity in the petitioner-challenge husband's to the constitutionality of
“Section 10” provisions as discriminating “against the husband” and thus “violative of Article
14 of the Constitution”.

Furthermore, persons who refuse to adhere to the “Indian Divorce Act” or any other personal
legislation are not required to marry only under this rule. The Special Marriage Act of 1954
gives them the right to marry. They cannot, however, be heard to complain about the Act's
rigours, if any, because they married under it and accepted its discipline.