A division Bench of the Kerala High Court Friday said that the stipulation of the period of one year or more for filing a divorce petition by mutual consent — under Section 10 A of the Divorce Act, 1869 — violates fundamental rights and is unconstitutional.
The bench of Justices A. Muhamed Mustaque and Shoba Annamma Eapen said the Union Government should seriously consider having a “uniform marriage code in India to promote the common welfare of spouses in matrimonial disputes.’’
The High Court was acting upon a petition moved by a young Christian couple, challenging the refusal of a family court to enter their joint petition for divorce.
Their marriage was solemnised as per Christian rites on January 30 this year. Their marriage was not consummated. The couple decided to seek divorce and on May 31, moved a joint petition before the Family Court, Ernakulam, under Section 10 A of the Divorce Act, 1869.
But the Family Court registry refused to number their petition, noting the restriction on filing a joint petition within one year after the marriage under Section 10 A. The Family Court rejected the petition holding that one-year separation after the marriage is an essential condition to maintain a petition under the Act.
Subsequently, the couple moved the High Court under Section 151 of the Code of Civil Procedure. The court appointed Sandhya Raju and Leela R. as amici curiae to assist it.
The couple also filed another petition to declare that the waiting period of one year fixed under Section 10A (1) of the Act is unconstitutional.
After examining the petitions in detail, the High Court also directed the family court to number the petition presented by the petitioners seeking divorce on mutual consent and dispose of the same within two weeks.
After examining whether the spouses have the right to separate their marriage mutually, before the aura of the marriage period of one-year ends, the court said the stipulation of the one-year period or more for the purpose of filing a divorce petition by mutual consent under Section 10A is “violative of fundamental right and is declared unconstitutional”.
The court said that the legislation on divorce must focus on the parties rather than the dispute itself. “In matrimonial disputes, the law must aid parties to resolve the differences with the assistance of the Court. If a solution is not possible, the law must allow the Court to decide what is best for the parties. The procedure for seeking divorce shall not be to aggravate the bitterness by asking them to fight on preordained imaginary grounds. We hold that the fixation of the minimum period of separation of one year as stipulated under Section 10A is violative of the fundamental right and accordingly, strike it down,’’ said the court.
The Division Bench said the mandate of Section 10A(1) of Divorce Act will become oppressive if the parties are not given the option to highlight hardships and exceptional hardships they may experience during the waiting period. The right to a judicial remedy if curtailed by statutory provisions, the court will have to strike it down as it is violative of a fundamental right.
“The problem presented in this case is when the waiting period itself would cause hardship to the parties. Can the law command parties to sit at the fence and suffer the agony,’’ the court asked. It said that in a secular country, the legal paternalistic approach should be on the common good of the citizens rather than based on religion.