Chinnappa Reddy, J. - (1.)It was just the other day that a Constitution Bench of this court had to emphasise the urgency of infusing life into Art. 44 of the Constitution which provides that "The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India." 'The present case is yet another which focusses 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 (1985 Cri LJ 875):
"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 than justice from case to case."

(2.)The facts of the case are somewhat novel and peculiar. The wife, who is the petitioner before us claims to belong to the 'Khasi Tribe' of Meghalaya, who was born and brought up as a Presbytarian Christian at Shillong. She is now a member of the Indian Foreign Service. The husband is a Sikh. They were married under the Indian Christian Marriage Act, 1872. The marriage was performed on October 14, 1975. The present petition for declaration of nullity of marriage or judicial separation was filed in 1980 under Sections 18, 19 and 22 of the Indian Divorce Act, 1869. The prayer for declaration of nullity of marriage was rejected by a learned single judge of the High Court, but a decree for judicial separation was granted on the ground of cruelty. On appeal, a Division Bench of the High Court affirmed the judgment of the learned single judge. 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 capable 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. Yet 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 irretrievable breakdown of marriage is a ground for divorce, under the Indian Divorce Act. Section 10 of the Indian Divorce Act prescribes the grounds on which a husband or wife may petition for dissolution of marriage, The ground on which a husband may obtain a decree for dissolution of marriage is the adultery of the wife. The grounds on which a wife may obtain a decree for dissolution of marriage are change of religion from Christianity to another religion and marriage with another woman, incestuous adultery, bigamy with adultery, marriage with another woman with adultery, rape, sodomy or bestiality, adultery coupled with cruelty, adultery coupled with desertion for more than two years. It must be noted that the Indian Divorce Act applies only to cases where the petitioner or respondent professes the Christian religion. Section 19 provides that a marriage may be declared null and void on the ground -
"(1) that the respondent was impotent at the time of the institution of the suit;

(2) that the parties are within the prohibited degrees of consanguinity (whether natural or legal) or affinity;

(3) that either party was a lunatic or idiot at the time of the marriage;

(4) that the former husband or wife of either party was living at the time of the marriage and the marriage with such former husband or wife was then in force."
Section 22 provides for judicial separation at the instance of either husband or wife on the ground of adultery, cruelty or desertion for two years or upwards.
(3.)The provisions of the Divorce Act may now be compared with the provisions of other enactments and laws which provide for decrees of nullity of marriage, divorce and judicial separation. Under the Hindu Marriage Act, Sec. 10 provides for judicial separation. It enables either party to a marriage to seek judicial separation on any of the grounds specified in Sec. 13(1) and in the case of a wife also on any of the grounds specified in sub-sec. 2 of Sec. 13. Section 11 provides for a declaration that a marriage is a nullity if it contravenes anyone of the conditions specified in clauses (i), and (v) of Sec. 5. Sec. 5(i) requires that neither party has a spouse living at the time of the marriage. Sec. 5(iv) requires that the parties are not within the degrees of prohibited relationship, unless the custom or usage governing each of them permits of a marriage between the two. Sec. 5(v) requires that the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two. Section 12 further provides that a marriage is voidable and may be annulled if (a) a marriage has not been consummated owing to the impotence of the respondent; or (b) a marriage is in contravention of the conditions specified in Sec. 5(ii) (marriage without valid consent); or (c) the consent of the guardian, where required, under Sec. 5 was obtained by force or fraud; or (d) the respondent was, at the time of the marriage pregnant by some person other than the petitioner. Section 13(1) enumerates the grounds for the dissolution of a marriage on the petition of a husband or wife. It provides that a marriage may be dissolved by a decree of divorce if the other party -
"(i) has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse, or

(i-a) has after the solemnization of the marriage, treated the petitioner with cruelty, or

(i-b) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition, or

(ii) has ceased to be Hindu by conversion to another religion, or

(iii) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.

(Explanation omitted for the present purpose)

(iv) has, been suffering from a virulent and incurable form of leprosy, or

(v) has been suffering from venereal disease in a communicable form, or

(vi) has renounced the world by enteringany religious order, or

(vii) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive."

(Explanation omitted for the present purpose)

Section 13 (1 -A) provides-

"(i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of one year or upwards after passing of a decree for judicial separation in a proceeding to which they were parties, or

(ii) that there has been no restitution of conjugal rights as between the parties to the Marriage for a period of one year or upwards after the passing of the decree for restitution of conjugal rights in a proceeding to which they were parties."
Section 13(2) provides-
" (2) A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground

(i) in the case of any marriage solemnized before the commencement of this Act, that the husband had married again before such commencement or that any other wife of the husband married before such commencement was alive at the time of the solemnization of the marriage of the petitioner, or

Provided that in either case the other wife is alive at the time of presentation of the petition, or

(ii) that the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality, or

(iii) that in a suit under Section 18 of the Hindu Adoptions and Maintenance Act, 1956, or in a proceeding under Section 125 of the Code of Criminal Procedure, 1973 (or under the corresponding Section 488 of the Code of Criminal Procedure, 1898), a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards, or

(iv) that her marriage (whether consummated or not) was solemnized before she attained the age of fifteen years and she has repudiated the marriage after attaining that age but before attaining the age of eighteen years."
Section 13-A -provides that on a petition for dissolution of marriage by a decree of divorce, except in so far as the petition is founded on the grounds mentioned in Sec. 13 (i)(ii)(vi) and (vii), the court may, if it considers it just so to do, having regard to the circumstances of the case, pass a decree for judicial separation. Section 13-B further provides that a petition for dissolution of marriage by a decree of divorce may be presented to the court by both the parties to the marriage together on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved. 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 Acts 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 time. 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(1A) and Sec. 13(B).