ANLL KUMAR MAHSI versus UNION OF INDIA AND ANR.

Citation: [1994] SUPP. 2 S.C.R. 1 · Decided: 20-07-1994 · Supreme Court of India · Bench: P.B. SAWANT · Disposal: Dismissed

Judgment (excerpt)

> 
ANlL KUMARMAHSI 
v. 
UNION OF INDIA AND ANR. 
JULY 20, 1994 
[P.B. SAWANT AND YOGESHWAR DAYAL, JJ.] 
lndia11 Divorce Act, 1869-S.lo-Dissolutio11 of Maniage-Grounds 
availaNe for husband and wife-Whether discrimi11atory against husband and 
violative of Art. 14 of the C<mstitution of lndia-Held: No. 
Canstin1tian of India, 1951}-Ait. 14-Graunds available far dissolution 
of Mm>iage under S.10 of the Indian Divorce Act, 1869-Held not dis-
ciiminatory against the husband. 
A 
B 
c 
In this Writ Petition, the petitioner's challenge is directed against 
S.10 ot" the Indian Divorce Act, 1869 as being discriminatory against the D 
husband and hence violative of the equality clause enshrined in Art. 14 of 
the Constitution of India. 
Negativing the challenge and dismissing the Petition, this Court 
HELi> : 1. As far as the ground of adultery is concerned, it is the 
husband who is in a favourable position as against the wife, since it is not 
enough for the wife to prove adultery simpliciter on the part of her 
husband. To that extent, undoubtedly, it is the wife who is discriminated 
E 
i 
against, because slle has to prove adultery which is (i) incestuous, (ii) 
coupied wZti1 !:ig:-~my, (iii) coupled \l'ith marriage with another woman, (iv) 
F 
coupled with cruelty which without adultery would have entitled her to 
divorce a mensa et taro, (v) coupled with desertion without reasonable 
excuse for two years or upwards. [5-A] 
2.1. The other grounds which are available to the wife to claim 
dissoiution of the marriage, which grounds are impliedly not available to G 
the hi:siJand, are (a) that the husband has exchanged his profession of 
Christianity for the profession of some other religion and gone through a 
form of marriage with another woman, and (b) that thE husband is guilty 
of rar·e, sodomy or bestiality. It will be evident from these two grounds that 
a mere exchange of the profession of Christianity for the profession of H 
1 
2 
SUPREME COURT REPORTS (1994] SUPP. 2 S.C.R. 
A another religion on the part of the husband is not enough. The wife has 
also to prove that the husband has married another woman. Since, how-
ever, the husband can seek dissolution of the marriage only on the ground 
~ 
of adultery, the husband is not at a disadvantage as against his wife 
because a mere marriage with another man whether after exchanging the 
B profession of religion or not, would give a ground to the husband to seek 
dissolution of marriage. [5-C-D] 
· 2.2. Although the modern usage of the word 'rape' extends also to 
the forcible sexual intercourse by a woman with a man, the dictionary 
meaning of the said word as well as the offence of rape as defined in the 
c Indian Penal Code speak only of forcible sexual intercourse by a man with 
t 
a woman. One has to accept the latter meaning of the said word while 
construing the provisions of the Act which is one of the vintage enactments 
on our statute book. Hence, it cannot be said that there is any discrimina-
ti on between husband and wife because the ground of rape is not available 
D 
to the husband for dissolving the marriage. [5-F-G] 
State v. Young, 140 Qr. 228, 13 P. 2d 604, referred to. 
Black's Law Dictionary, (5th Edn.) & Shorter Oxford English Diction-
my, referred to. 
E 
3. Going by S. 377 IPC, it can be said that a wom"n can also be guilty 
of sodomy. So will be the position in the case of the offence of bestiality. 
The discrimination therefore, can be alleged by the husband only on the 
basis that these two grounds, viz., sodomy and bestiality, are not available 
to him for claiming dissolution of his marriage whereas the same are 
F 
available to the wife for that purpose. Taking into consideration the 
muscularly weaker physique of the woman, her general vulnerable physi-
que and social condition and her defensive and non-aggressive nature and 
role particularly in this country, the legislature can hardly be faulted if the 
said two grounds are made available to the wife and not to the husband 
for seeking dissolution of the marriage. (6-D-F] 
G 
CIVIL ORIGINAL JURISDICTION: Writ Petition (C) No. 1285 of '-
1989. 
(Under Article 32 of the Constitution of India) 
H 
D.K. Garg for the Petitioner. 
.. 
) 
-· 
AK. MAHSI v. U.0.1. (SAWANT,J.] 
3 
K.K. Venugopal and K. Vishwanathan for the Respondents. 
A 
The Judgment of the Court was delivered by 
SAWANT, J. The hearing of this petition is confined only to examin-
ing the vires of Section 10 of the Indian Div

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