Date : May 20, 1997

Cruelty, physical and mental, is now ground enough for a Christian woman to obtain a divorce. Last fortnight, the Bombay High Court (BHC) recognised cruelty and desertion as independent grounds for the dissolution of a Christian marriage.

The court struck down Section 10 of the Indian Divorce Act which stated that a Christian wife had to necessarily prove adultery along with cruelty or desertion while seeking divorce. The court ruled that the section discriminated against women and therefore violated the constitutional right to equality and right to fife.

This Bombay High Court judgment comes close on the heels of the February 1995 Kerala High Court (KHC) judgment in the Mary Sonia Zachariah vs Union of India case. The KHC had ruled that "Section 10 compels the wife, who has been deserted or cruelly treated, to continue her fife with a man she hates .... Such a life is sub-human .... There is denial to dissolve the marriage when the relationship has broken down irretrievably......

The court also dismissed the argument that striking down Section 10 meant disrespect to Christian principles. "So long as the infringed provisions are part of an Act, it must pass the test of constitutionality even if the provision is based on religious principles...... the KHC ruling had stated. Around 10 Christian organisations were present in the court to support the petition.

A similar united effort was evident in Mumbai when the BHC struck down the offending provisions. Three Christian women, who had never seen or met each other, unknowingly became part of a historic judgment.

Jessie D'Silva, Ursulla Menezes and Pragati Varghese had filed for divorce at different points of time. But their petitions were clubbed together since they raised common issues. Last week, their lawyers Flavia Agnes, I.P Bagaria and Lata Desai respectively, vehemently argued for almost the same prayers divorce due to mental and physical cruelty by their respective husbands. The individual battles comprised gory physical assaults, abuse during pregnancy and prolonged mental harassment. All the three women, now in their thirties, have demanded custody of their children and alimony from their husbands.

While the three divorce pleas are still to be decided on individual merits, the larger theory of granting divorce has been determined. The judgment is a step forward in giving justice to Christian women seeking divorce, especially in the context of the much-awaited rationalisation of personal laws in India.

The coincidence of the three divorce cases coming up at the same time was fortuitous. The petitioners' advocates jointly maintained that Section 10 is objectionable as it denies the right to five a fife with dignity to the woman seeking divorce. Advocate Desai cited every statute of Article 21 of the Indian Constitution which undermines the right to life. Bagalia stressed that every law must change according to the social climate. Legal amendments, partial and major, are permitted in any law in order to maintain a balance with popular sentiment, he said.

Advocate Agnes, who argued for nearly two whole days, cited the entire history of Section 10 governing Christian marriages. She said the section is based on England's statute titled Matrimonial Causes Act, 1857, which granted the right of divorce to Christian women for the first time. England effected several changes in this statute in the years that followed, including 'irretrievable breakdown of marriage' as a ground. But Agnes argued that the laws governing Indian Christian marriages remained unchanged, while the Parsi, Hindu and Muslim marriage laws have undergone several changes and have even recognised divorce by mutual consent.

Agnes also cited several Law Commission reports which have affirmed the need for such an amendment. Moreover, the Christian community has jointly presented a Bill endorsing the changes in the Christian marriage and divorce law.

Desai feels that courts have acted as agents of "social reform". "The amendment is in keeping with the Christian community's demand to simplify the divorce procedure. But the State governments have been characteristic apathetic. We are glad that courts took the initiative in striking down the offending provisions," he says.

Advocate Bagaria said this was indeed a landmark judgment. "Earlier, couples applied for judicial separation and nullification of marriage under Section 19. 'Farcical grounds' like allegation of impotency, lunacy or second marriage were put forth to sever the ties." Over 50 claims for judicial separation are pending in the BHC itself. Most of these claims are likely to be amended, and couples might seek divorce straightaway. Members of the Christian community have also welcomed the judgement. In fact, a reform Bill, jointly drafted, including by the Catholic bishops, has already been submitted to the Government. But this Christian Marriage and Matrimonial Causes Bill, 1994, is still to be considered. All India Catholic Union President Norbet D'Souza says: "It is in line with our efforts to remove the lacunae in the law. We welcome the decision."

The BHC, however has gone a step further than the KHC ruling. It has also struck down Sections 17 and 20 of the Indian Divorce Act which state that if an order of divorce or annulment is passed by a district court, then it needs to be confirmed by a three-member Bench of the High Court. No such confirmation will now be required.