Reynold Rajamani v Union of India (Supreme Court, 1982) — no divorce by mutual consent under the Divorce Act, and no importing English law

It is the authority for two propositions that examiners like together: that a court cannot add a ground of divorce the legislature has not enacted, and that a British statute passed after 1947 cannot be read into an Indian Act. It is also the historical explanation for s. 10A.

The appellants, husband and wife of the Roman Catholic community, were married on 30 December 1967 at Podannur in Tamil Nadu under s. 27 of the Indian Christian Marriage Act, 1872. On 26 July 1979 they filed a joint petition for divorce by mutual consent under s. 28 of the Special Marriage Act, 1954 before the District Judge, Delhi. The trial court dismissed it: s. 28 of that Act was not available to them. They were then allowed to amend the joint petition to rely on s. 7 of the Indian Divorce Act, 1869 read with s. 1(2)(d) of the Matrimonial Causes Act, 1973 of England, and to seek divorce on the ground that they had lived separately for more than two years, had not been able to live together, and that the marriage had broken down irretrievably. The District Court dismissed the amended petition and the Delhi High Court affirmed. They appealed by special leave.

1. Did s. 7 of the Divorce Act, 1869 incorporate s. 1(2)(d) of the English Matrimonial Causes Act, 1973, so as to make two years' separation with mutual consent a ground of divorce in India?
2. Was the Letters Patent jurisdiction of the High Court in matrimonial matters wide enough to allow a decree of divorce on a ground not in the Act?

Dismissing the appeal, the Court held unanimously: "Mutual consent is not a ground for divorce under the Indian Divorce Act 1869", and the provisions of s. 1(2)(d) of the English Act of 1973 "cannot be read into section 7 of the Indian Divorce Act, 1869".

Pathak J. (with Baharul Islam J.) held that whether a provision for divorce by mutual consent should be included in the Act "is a matter for legislative policy"; "the courts cannot extend or enlarge legislative policy by adding a provision to the statute which was never enacted there". It was for Parliament to consider amending the Act. The Letters Patent jurisdiction of the High Court could not be construed to include a ground for divorce "not specifically set forth in section 10 of the Indian Divorce Act, 1869".

Chinnappa Reddy J. (with Baharul Islam J.) added the constitutional reason: legislation made by the Parliament of a foreign state cannot automatically become part of the law of another sovereign state. Whatever interpretation of s. 7 may have been permissible before 15 August 1947, when the British Parliament had plenary power over Indian territory, "no interpretation is now permissible which would incorporate post-1947 British laws into the Indian laws".

1. The grounds of divorce for Christians are only those the Act sets out; a court cannot add mutual consent.
2. Section 7 does not operate as a channel for post-independence English legislation.
3. Reform of this kind is for Parliament, not the courts.

Parliament acted through the Indian Divorce (Amendment) Act, 2001: s. 7 was repealed, s. 10 was rewritten with ten grounds available to both spouses, and s. 10A introduced divorce by mutual consent on two years' separation, with the motion between six and eighteen months after presentation.