Family court can’t block mutual divorce if both spouses agree to it: Kerala High Court

Plea for divorce by mutual consent

• The couple got married in 2023 according to Roman Catholic Christian rites, and later registered the marriage before the local registrar.
• Owing to matrimonial differences, the parties began living separately. Despite conciliation efforts undertaken by both families, the couple ‘mutually’ decided to separate, as they were unable to lead a harmonious married life.
• Subsequently, a petition was filed seeking divorce by mutual consent before the family court. After the cooling period of six months, the parties underwent counselling and the attempt for reunion was not materialised.
• Both parties filed proof affidavits and were examined before the family court. However, the family court dismissed the petition, observing that the husband had stated they were living separately “without any valid reason” and concluding that there was no mutual consent between the parties.
• Feeling aggrieved by the order, the wife filed an appeal
• The counsel for the wife argued before the Kerala High Court that the husband had categorically stated during the deposition that he wanted a divorce.
• It was contended that the family court erred in probing the reasons for separation instead of confining itself to the requirements under Section 10A of the Divorce Act.

Family court’s refusal ‘unwarranted’

• The Kerala High Court noted that the family court, in a plea filed under Section 10, is required to make such inquiry as it thinks fit, that a marriage has been solemnised and that the averments in the petition are true and to pass a decree declaring the marriage to be dissolved with effect from the date of decree.
• It further observed that the family court ought to have looked into the aspects of whether there was a valid marriage, if a mutual consent petition was filed by the parties and whether they were agreeable for a divorce.
• The Kerala High Court noted that when the couple had clearly stated that they wanted a divorce, the finding that one of the parties had withdrawn consent and a decree of divorce by mutual consent could not be granted, was unwarranted.
• There is no withdrawal of any consent as seen from the depositions, hence the family court should not have dismissed the petition for divorce, it held.
• Allowing the matrimonial appeal, the Kerala High Court set aside the family court’s judgment and dissolved the marriage.
• Allowing the appeal, the court set aside the impugned judgment and decree of the family court and said the marriage stood dissolved from the date of the judgment.

What is Section 10A of the Divorce Act, 1869?

Section 10A of the Divorce Act, 1869, deals with the dissolution of marriage by mutual consent. It allows a husband and wife to jointly seek divorce by mutual consent if they have been living separately for at least two years, are unable to live together, and both agree to end the marriage.

It also states that after filing the petition, the couple must wait at least six months before asking the court to pass the divorce decree. If the petition is not withdrawn within this period, and the court is satisfied that the marriage took place and the statements made in the petition are true, it can grant a decree dissolving the marriage.