A Mumbai-based couple has challenged a section of the Indian Divorce Act that requires Christian couples to live separately for two years before seeking divorce by mutual consent. For all other communities, the mandatory minimum period of living separately is one year. Hearing the matter, the Bombay High Court has asked the advocate appearing for Union of India, Rui Rodrigues, to file a reply on whether the Central government has challenged the judgments of the Kerala and Karnataka High Courts under which the period of two years, as stipulated in Section 10 A (1), has been read down to a period of one year “to save the said provision from unconstitutionality”. The Bombay High Court has also asked if the government intends to challenge these two judgments. [related-post] “Before we hear and decide the petition finally, it will be necessary to ascertain whether the decision of the Kerala High Court and the Karnataka High Court has been challenged before the Apex court,” said Justices A S Oka and A P Bhangale. The Kerala High Court judgement read down the period as one year, keeping it in consonance with matrimonial laws governing other communities. In Karnataka too, Christian couples’ mandatory period of staying separately before seeking divorce by mutual consent is one year, following a judgement by its high court. In an earlier hearing, the Bombay High Court had said, “Prima facie, it appears that the petitioners will be entitled to rely upon the law laid down by the Kerala High Court.” The couple, who got married in 2013, registered their marriage according to the Indian Christian Marriage Act, in Mumbai. Due to irreconcilable differences the couple started living separately since June 2013. They filed a petition seeking divorce in a family court in 2014. The petition was, however, dismissed on the grounds that the petitioners filed the petition after one year of marriage and separation. They then decided to approach the high court. The Kerala High Court, in a judgement, had held that the stipulation in section 10 A (1) of the Indian Divorce Act, 1869, that spouses “have been living separately for a period of two years or more” is declared to be unconstitutional as the stipulation of the period of two years violates fundamental right to equality. To save the provision and to avoid unconstitutionality, the period of two years was read down to a period of one year. According to the petition filed by the couple before the Bombay High Court, the stipulation of two years under Section 10A(1) is “arbitrary, capricious and fanciful and offends the right to equality of the petitioners”. ruhi.bhasin@expressindia.com
