Pragati Varghese v Cyril George Varghese (Bombay High Court, Full Bench, 1997) — the unequal grounds in s. 10 struck down

Until 2001 a Christian husband could sue for divorce on his wife's adultery alone, while a Christian wife had to prove adultery coupled with something else. This Full Bench held that discrimination unconstitutional, severed the offending words, and told Parliament to legislate. It is the standard answer to "discuss the constitutional validity of the grounds of divorce under Christian law".

Several suits were filed by Christian wives for dissolution of their marriages under s. 10 of the Indian Divorce Act, 1869. Each challenged the vires of s. 10, which set out the grounds on which a husband and a wife could sue. The plaintiffs contended that the provisions were archaic and discriminated against wives as against husbands merely on the ground of sex, and were therefore violative of Article 15; that they discriminated against Christian wives compared with wives of other communities, denying them equality before the law under Article 14; and that by forcing them to remain married despite cruelty or desertion the section deprived them of their right to life and personal liberty and their dignity under Article 21. They also impugned ss. 17 and 20, which required a District Judge's decree of dissolution or nullity to be confirmed by the High Court, normally by a Bench of not less than three Judges. The matter went before a Full Bench of Agarwal, Savant and Patankar JJ.

1. Are the grounds available to a Christian wife under s. 10 violative of Articles 14, 15 and 21?
2. If so, must the whole section fall, or can the offending words be severed?
3. Is the confirmation procedure in ss. 16, 17 and 20 valid?

The Full Bench endorsed the view of the Kerala High Court in Ammini E.J. v Union of India, and applied severability. Rather than strike down the whole section and create a vacuum, it severed and quashed the words "incestuous" and "adultery coupled with" from s. 10, so that the section would thereafter permit Christian wives to seek dissolution "on the grounds of adultery, desertion and cruelty also without the necessity of proving adultery" — bringing the position broadly into line with the other matrimonial statutes and the Special Marriage Act.

The operative order records: "we hold that the indicated portions of Section 10 of the Act are ultra vires Articles 14, 15 and 21 of the Constitution and the same are accordingly struck down. We further find the provisions of Sections 16, 17 and 20 of the Act are also arbitrary and unreasonable." The Court observed of the confirmation procedure that it achieved no useful object and "tends to perpetuate the agonies of the affected parties for no useful purpose", and that there was no propriety in applying to Christian spouses a procedure absent from similar enactments. It suggested that the legislature intervene with suitable amendments at the earliest and directed that a copy of the order be forwarded to the Ministry of Law and Justice. The suits went back to the single Judge, and a stay was refused.

1. Requiring a wife, and not a husband, to prove adultery coupled with a further matrimonial offence discriminates on the ground of sex and denies equality and dignity — Articles 15, 14 and 21.
2. Where offending words are severable, the court severs them and preserves the rest of the section rather than striking the whole down.
3. The requirement that a District Judge's decree be confirmed by the High Court is arbitrary and unreasonable.

The Indian Divorce (Amendment) Act, 2001 rewrote s. 10 with ten grounds common to both spouses, kept rape, sodomy and bestiality as the wife's additional ground, inserted s. 10A for mutual consent, and did away with the confirmation requirement.