Gentlemen why talk only of HMA see others’ Personal Laws too while talking in generic tone most of the times !
Under S. 22 of The Indian Divorce Act, Christian spouses are not entitled to dissolution of marriage on grounds of adultery, cruelly or desertion but are entitled only to judicial separation which has the effect of a divorce a mensa et thoro i.e. separation only from bed and board where under matrimonial bonds remain un-dissolved. But spouses governed by other Acts such as Special Marriage Act, Hindu Marriage Act, 1955, Parsi Marriage and Divorce Act, 1936, Dissolution of Muslim Marriages Act, 1939 are entitled to dissolution of marriage and not merely judicial separation on these grounds. Christian spouses are thus discriminated only on the ground of their being Christians by religion. This violates the mandate of Article 15 of the Constitution.
If the provisions of the Hindu Marriage Act are compared with the provisions of the Indian Divorce Act. it will be seen that apart from the total lack of uniformity of grounds on which decrees of nullity of marriage, divorce or judicial separation may be obtained under the two Acts, the Hindu Marriage Act contains a special provision for a joint application by the husband and wife for the grant of a decree of divorce by mutual consent whereas the Indian Divorce Act contains no similar provision. Another very important difference between the two is that under the Hindu Marriage Act, a decree for judicial separation may be followed by a decree for the dissolution of marriage on the lapse of one year or upwards from the date of the passing of a decree for judicial separation, if meanwhile there has been no resumption of cohabitation. There is no corresponding provision under the Indian Divorce Act and a person obtaining a decree for judicial separation will have to remain content with that decree and cannot seek to follow it up with a decree of divorce, after the lapse of any period of lime. We may also notice that irretrievable break-down of marriage is yet no ground for dissolution of marriage under the Hindu Marriage Act also though the principle appears to have been recognised in Sec. 13(1 A) and Sec. I3(B) HMA !
Why blame Courts including Hon’ble SC when APEX Court herself admits in their words and wisdom which are as follows in;
Re. Union, of India v. Deoki Nandan Aggarwal, AIR 1992 SC 96, where the Supreme Court has observed, as under :
" 14. ..... It is not the duty of the Court either to enlarge the scope of the legislation or the intention of the legislature when the language of the provision is plain and unambiguous. The Court cannot rewrite, recast or reframe the legislation for the very good reason that it has no power to legislate. The power to legislate has not been conferred on the courts. The Court cannot add words to a statute or read words into it which are not there. Assuming there is a defect or an omission in the words used by the legislature the Court could not go to its aid to correct or make up the deficiency. Courts shall decide what the law is and not what it should be. The Court of course adopts a construction which will carry out the obvious intention of the legislature but could not legislate itself. But to invoke judicial activism to set at naught legislative judgment is subversive of the constitutional harmony and comity of instrumentalities. ....
Likewise there are so many ultra-vires in various personal laws that opening them one by one will end up opening a just pandora’s box. So less said about self exasperation as seen by the queriest the better for the time being till Uniform Personal Law is debated by legislatures and who tells MP’s to do so – we the voters so do the needful talking with your MLA and then to MP and say clearly we will not vote till you set the Uniform Personal Law right – shall we J .
