The Law Commission, headed by former Supreme Court Justice Jeevan Reddy, has recommended a complete overhaul of the Act. The Law Commission in its report presented to the Union Government last week along with a draft bill has asked for the deletion of provisions relating to Section 10 of the Act which says that while a Christian man may be granted a divorce on the grounds of adultery, a woman is required to prove an additional marital offence.

These recognised offences include change in religion, a form of marriage with another women, incestuous adultery, rape, sodomy or bestiality and bigamy with adultery.

The report says that Section 10 has failed the test of avoiding discrimination between the sexes, which it states is ``a Constitutional imperative''.

According to the Commission: ``If Section 10is to stand the test of Constitutional mandate of equality before the law and equal protection of laws, in the context of avoiding discrimination between the sexes, then the amendment is necessary. If Parliament does not remove the discrimination the courts, in exercise of their jurisdiction to remedy violations of fundamental rights, are bound some day to declare the section as invalid''.

Describing the Act as ``an anachronism today'' the Law Commission says it ``is replete with antiquated and discriminatory provisions since it was made more than 128 years ago.'' Referring to earlier Law Commission reports on the subject the Commission has stated that more than a decade has elapsed but ``no effective action has been taken by Parliament on the basis of the reports to amend the Act.''

Besides seeking changes in Section 10 of the Act, the Law Commission has recommended that that Sections 17 and 20 of the Act should also be deleted. Section 17 says that every decree for the dissolution of marriage made by adistrict Judge shall be subject to confirmation by the High Court. Cases for confirmation of dissolution of marriage shall be heard by a court composed of three such judges, and in case of a difference of opinion the majority shall prevail.

Section 20 provides that every decree of nullity (decree nisi issued at the first instance and not made absolute till after six months) shall be subject to confirmation by the High Court. The commission has recommended repeal of both these sections.

Under the Act at present, Christian spouses are not entitled to dissolution of marriage on the grounds of cruelty or desertion but are only entitled to judicial separation under Section 22. This, the Commission says, is ``separation only from bed and board where matrimonial bond remains undissolved''.

It feels this is discriminatory to Christians since it does not apply to people getting married under the Special Marriage Act, Hindu, Buddhist and Sikh spouses governed under the Hindu Marriage Act, 1955 or Parsi Marriageand Divorce Act 1936. Muslim wives under the Dissolution of Muslim Marriage Act 1939 are entitled to dissolution of marriage and not merely judicial separation.

This, according to the Commission, amounts to religious discrimination which is in violation of Article 15 of the Constitution.

Taking note of the political compulsions of the Bharatiya Janata Party (BJP) government, the Commission has said that ``if for any reason, there is going to be some delay in enacting a new comprehensive law as suggested the provisions in Section 10, 17 and 20 may at least be amended forthwith....''

The Commission also repeatedly stresses the fact that the changes it has suggested will not be objected to by the Christian community. The Law Commission points out that its report was prepared after collecting ``evidence'' from dignitaries of the Christian church, representatives of Christian associations and members of the community.

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