ASSIGNMENT

GENDER JUSTICE & FEMINIST JURISPRUDENCE

TOPIC:

JORDEN DIENGDEH V SS CHOPRA (1985) 3 SCC 62

SUBMITTED BY:

AYSHA LUKMAN

9/5 BBA LLB [HONS]

ROLL NO: 24

SUBMITTED TO:

AJAY RATNAN

ASSISTANT PROFESSOR

GOVERNMENT LAW COLLEGE

 NAME OF THE CASE & CITATION

Ms. Jordan Diengdeh vs S.S. Chopra on 10 May, 1985

1985 AIR 935, 1985 SCR Supl. (1) 704

FACTS OF THE CASE

The petitioner belonged to the 'Khasi Tribe' of Meghalaya and was born and brought up as a
Presbyterian Christian. She is now a member of the Indian Foreign Service. The respondent-
husband is a Sikh. They were married under the Indian Christian Marriage Act 1872. The petitioner
filed a petition in 1980, for declaration of nullity of marriage or judicial separation under ss. 18,
19 and 22 of the Indian Divorce Act, 1869. A Single Judge of the High Court rejected the prayer
for declaration of nullity of marriage, but granted a decree for judicial separation on the ground of
cruelty. Division Bench affirmed the decision of the Single Judge on appeal. The wife has filed
this petition for special leave to appeal against the judgment of the High Court. She seeks a
declaration of nullity of marriage. The ground on which the declaration was sought in the courts
below and the ground on which it is now sought is the impotence of the husband in that though the
husband is of achieving erection and penetration, he ejaculates prematurely before the wife has an
orgasm, leaving the wife totally unsatisfied and frustrated. At this stage, we are not concerned with
the question how far the wife has been able to establish her case. The real problem now is that the
marriage appears to have broken down irretrievably.

ISSUE INVOLVED

1.Whether the wife will be able to obtain a decree of divorce under Indian Divorce Act, 1869?

ARGUMENTS ADVANCED

CONTENTIONS OF THE PETITIONER:

1.The appellant-wife has averred that on the wedding night she discovered that the respondent-
husband was suffering from premature ejaculation and that he was unable in give Tier any in
mind and body and that, therefore, the respondent was impotent qua her and that this impotency
of the husband prevented her from having any orgasm during coitus. She further stated that she
expected that in due course of time the respondent's ability and technique would improve and she
would get satisfactory orgasm but that the respondent continued to ejaculate prematurely leaving
her in a state of vascular congestion leaving. her physically tense, dissatisfied, mentally disturbed
and physically unwell'. All this led to deterioration in her physical health and well-being. She
consulted a doctor who, on examination, did not find any ailment with her, and prescribed some
tonics as she was losing weight. The parties lived together as husband and wife for about four
years and it has come in the evidence of the appellant-wife that during her stay with her husband
she never consulted any doctor regarding her sex-life and that she consulted the doctor only after
she had left her husband.

2.This is how the appellant-wife describes her experience of the first night after the marriage :-
"after the dinner the respondent took me to his room. He bolted the door of the room. He
approached me and took off my clothes. He also took off his clothes. He laid me down on the
bed. Since I was feeling shy, I closed my eyes. I was lying on my back on the bed. I could feel
the respondent's weight on me. He penetrated me and caused me pain. What I can remember is
that he made few rapid thrusts then I could feel his weight lifted and that was about all that
happened. Besides this he never kissed me or caressed me or touched any part of my body. The
whole act was painful. The total time lapsed between the respondent's weight on me and its
having been lifted was abut 8 seconds or so.
'The appellant-wife has further stated that on the second night again she had sexual intercourse
with the respondent but the duration was slightly longer. She stated that the respondent
ejaculated before she could get satisfaction. Because of this, she stated, she started dreading sex
with the. respondent. She read some books on the functioning of the female body and then she
knew that it was necessary to have foreplay before sexual' act was commenced. She stated that
she realised that there were four phases in the human sexual response. We have already noticed
these phases while referring to the statements of the doctors above The wife also stated that she
only experienced the excitement phase and the beginning of the plateau phase with the
respondent. She then described the responses which she had at the time of sexual act with the
respondent.

CONTENTIONS OF THE RESPONDENT:

1."it was not an arranged marriage but a love marriage", as the appellant has put it. The parties
know each other before the marriage, and, if we may say so, intimately. Though the appellant-
wife has tried to show that relations between the parties before the marriage were just friendly
and that she was almost duped by the respondent into marrying him, after examining her
statement one gets the feeling that she is not quite telling the truth. During this period, the parties
were visiting various restaurants and places of entertainment quite frequently. The appellant-wife
was staying at the Railway Rest House. She stated that when the respondent would come to drop
her at the Rest House she would not permit him to enter her room. It has, however, come on
record that on one night, during this period, the parties got late in a restaurant in the Ashoka
Hotel, when the respondent hired a room in that hotel and both parties spent the night there
together. The respondent contends that they indulged in sexual acts there but the appellant-wife
denies that they had any sex at that time. We need not elaborate this incident any further. We
would only say that the statements of the parties show that both of them had ample opportunity
to know each other before the marriage and it was not that the marriage was thrust upon the
appellant-wife.

2.The respondent-husband has denied that he was impotent. According to him, both parties lived
together as husband and wife till August 1979 for a period of over four years. At no point of
time, the appellant-wife complained of the impotency of the husband. After leaving the husband,
the appellant wife filed a petition for divorce against the husband on the ground of cruelty under
S. 27 of the Special Marriage Act which was, however, dismissed by the Addl. District Judge,
Delhi, on 18th February 1980, in as much as no such petition could be filed under that Act when
the marriage between the parties was solemnized under the Indian Christian Marriage Act. In this
petition, the appellant-wife did not take up the ground of impotency of the husband although
such a plea was available to her under the Special Marriage Act. According to the husband,
parties were leading a happy married life and were indulging in sex acts to the full satisfaction of
both the parties. The appellant-wife became pregnant on two occasions. According to him, a
false charge of impotency has been levelled to meet the requirements of S. 19. of the Indian
Divorce Act.

3.As has been noticed above the appellant-wife, before her selection to the Indian Foreign
Service in 1979, was working in the Indian Railways and during the course of her service with
the Railways, had to visit various places all over the country like Dhanbad, Asansol,
Chakardbarpur, Meerut, Moradabad, Bilaspur, Gauhati, Chirapunji. Shillong and Baroda. etc. In
all these places the respondent accompanied her. and according to the appellant-wife, she was
having sexual intercourse with the respondent at all these places. As a probationer while at
Mussoorie she had also gone to Sri nagar with her batch-mates, but there she stayed with the
respondent in a hotel, and was having sexual intercourse with him. The parties also visited
Bombay and stayed in a hotel and had sexual relations. The appellant-wife also visited the
respondent in Canada where she stayed with him for about 2-12 months and the parties were
having sexual intercourse. She admitted that sometimes she was taking contraceptive pills in
order to prevent pregnancy. The respondent-husband has brought on record certain photographs
of the appellant-wife taken at various places and on various occasions which show that the
appellant-wife was quite happy.

DECISION

No, because a comparison of the relevant provisions of the Christian Marriage Act 1872, Hindu
Marriage Act 1955, Special Marriage Act 1954, Parsi Marriage and Divorce Act 1936, Dissolution
of Muslim Marriage Act, 1939, show that the law relating to judicial separation, divorce and nullity
of marriage is far, far from uniform.

Under the Hindu Marriage Act, a decree for the judicial separation may be followed by a decree
for the dissolution of marriage on the lapse of one year or upwards from 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 time.

In the instant case, the marriage appears to have broken down irretrievably. If the findings of the
High Court stand, there is no way out for the couple. They will continue to be tied to each other
since neither mutual consent nor irretrievably break-down of marriage is a ground for divorce,
under the Indian Divorce Act. There is no point or purpose to be served by the continuance of a
marriage which has so completely and signally broken down. The parties are bound together by a
marital tie which is better untied.
Time has now come for the intervention of the legislature to provide for a uniform code of
marriage and divorce as envisaged by Article 44 and to provide by law for a way out of the unhappy
situations in which couples find themselves in. It is necessary to introduce irretrievably break-
down of marriage, and mutual consent as grounds of divorce in all cases.
 RATIONALE
It was just the other day that a Constitution Bench of this Court had to emphasize the urgency of
infusing life into Art. 44 of the Constitution which provides that "The State shall endeavor to
secure for the citizens a uniform civil code throughout the territory of India." The present case is
yet another which focuses attention on the immediate and compulsive need for a uniform civil
code. The totally unsatisfactory state of affairs consequent on the lack of a uniform civil code is
exposed by the facts of the present case. Before mentioning the facts of the case, we might as well
refer to the observations of Chandrachud, C.J., in the recent case decided by the Constitution Bench
(Mohd Ahmed Khan v. Shah Bano Begum & Ors.) "There is no evidence of any official activity
for framing a common civil code for the country ... ... A common Civil Code will help the case of
national integration by removing disparate loyalties to laws which have conflicting ideologies. No
community is likely to bell the cat by making gratuitous concessions on this issue. It is the State
which is charged with the duty of securing a uniform civil code for the citizens of the country and,
unquestionably, it has the legislative competence to do so. A counsel in the case whispered,
somewhat audibly, that legislative competence is one thing, the political courage to use that
competence is quite another. We understand the difficulties involved in bringing persons of
different faiths and persuasions on a common platform. But, a beginning has to be made if the
Constitution is to have any meaning. Inevitably, the role of the reformer has to be assumed by the
courts because, it is beyond the endurance of sensitive minds to allow injustice to be suffered when
it is so palpable. But piecemeal attempts of courts to bridge the gap between personal laws cannot
take the place of a common civil code. Justice to all is a far more satisfactory way of dispensing
justice from case to case."
The observation in that case aside, all groups hold their Divinely revealed law cannot suffer non-
Divine modification, and members of their community must seek solutions emerging from within
the concerned group, ensuring acceptability, being fresh interpretations rather than ham-handed
legislative substitution. The Court said a common civil code will “help the cause of national
integration by removing disparate loyalties to laws which have conflicting ideologies”. There was
apparently at least a perception that national integration was somehow obstructed because of
diversity of laws.
Stating further that the State had the duty to secure a common civil code for the country, the Court
proceeded also to say that (the State) “unquestionably has the legislative competence to do
so”. That conclusion there is at least some reason to question: the words of Article 44 are not the
imperative language of other articles as seen below.
Art 26 of the Constitution says subject to public order, morality and health, every religious
denomination or any section thereof shall have the right-

(a) to establish and maintain institutions for religious and charitable purposes;

(b) to manage its own affairs in matters of religion; … etc.

Now, a religious institution is not necessarily only a mosque where worship is performed. Any
institution that caters to any aspect of religious practice would qualify as a religious institution. A
Constitutionally guaranteed freedom and right to establish and manage institutions for religious
purposes, and for a community to manage its own affairs in matters of religion, cannot be eroded
or diluted by such interpretation of another provision (a direction to try to secure a certain result)
as to render the guarantee itself nugatory or illusory. Effectively, a constitutionally guaranteed
freedom and right would be negated. It is submitted that that would not be at all proper or
acceptable from any legal standpoint.

ANALYSIS

The Indian Constitution envisages Fundamental Rights as the cardinal principle of our democracy.
It promulgates one of its rights i.e. the Right to Equality as a strengthening pillar to all those who
are addressed as “Indian Nationals”. Article 44 represented under the Directive Principles of State
Policy in the Constitution remarks the Indian state to follow a single law throughout the country
by implementing the Uniform Civil Code. A single discrete law in the form of unification of
personal religious laws would bring fair and non – discriminatory features in its execution. In
India, we have the Hindu laws, the Shariat law, the Shia laws, the Indian Christian Marriage
Act and the Parsi Marriage and Divorce Act which govern a particular paradigm of its own for the
Muslims, Christians and Parsis respectively. These laws that govern the women rights on property
and divorce have inadequately been ignored. Thus, Uniform Civil Code stresses on the modern
development and the linkage between uniformity and religion.

So far, the Indian state is retrospectively lacking behind in implementing the Right to Equality in
personal laws which link men and women in the social sphere. It has been noticed by the
implementation of these personal laws, that the rights of women are also not sufficiently protected.
We have Constitutional Remedies for our Fundamental Rights. But why do we not have remedies
and solutions for the infringement and discrimination under personal laws? Why has that not been
broadcasted by the law makers? Although having acquired secularism as a basic feature, the
differences of both men and women on one part and the religious personal laws, on the other hand,
have been unsolved. The UDHR, in its preamble also mentions equal status, rights, opportunities
and status to women in comparison to men. But the huge gaps and differences followed in our
country’s personal laws, has itself led to a drastic and a gross violation of human rights under
various International Conventions which India is a part of!

A woman’s liberty, authorization and upliftment has always triggered a huge discussion and debate
in the Indian society but hardly any major or revolutionary development has been recorded so far.
There has been an enormous lapse in the Hindu laws but the Muslim, Christian and Parsi laws still
continue to be very stringent in their practice. This is the sole reason that has kept a woman at the
grace of the other gender throughout their life.

Thus, UCC is undoubtedly the need of the society in today’s contemporary times but such a drastic
revolution will not take place in just one day, it will take years and years for UCC to come into
effect. The measure of UCC has to be an evolution and not a revolution. Hence, Uniform Civil
Code is now halfway on their complete implementation to abolish injustice in the patriarchal
society. It might seem that UCC is a bane for society but over a period of time, by maturation and
amendment of certain personal laws it will definitely prove to be a great boon for women as well
as the country.
Thus, the Indian nationals cannot exhaustively rely on the Parliamentarians to pass a bill and
implement a law. Instead, it is the primary liability of the Judiciary as well as the Honourable
Supreme Court to widen the outlook and bring about gradual and progressive evolution of various
personal laws through their interpretation of provisions and statutes. Such amendments before
getting into force need to be firstly, analyzed and secondly, accepted by the society as a measure
of healthy development for the public at large. Thus, at a future date we as a country might reach
this stage where the personal laws that are in conflict with the Fundamental objectives of the
Constitution are eradicated through step-by-step amendments and that would be a day when we
would address India as a fully developed country.