Kerala HC strikes down fixation of minimum period of separation of 1 year in Divorce Act

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The Kerala High Court on Friday held that the fixation of the minimum period of separation of one year under Section 10A of the Indian Divorce Act, 1869 is violative of the fundamental rights and struck it down.

The court also directed the Central Government to seriously consider having a uniform marriage code in India to promote the common welfare and good of spouses in matrimonial disputes.

The court ruled this while considering a writ petition filed by two parties against challenging the one-year period fixed under Section 10A(1) of the Act as unconstitutional.

This is after the Family Court, Ernakulam dismissed the joint petition filed by both which was within one year after the marriage as stipulated under Section 10A of the Act.

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Division Bench of Justice A Muhamed Mustaque and Justice Shoba Annamma Eapen observed while ruling this that, "the Legislature had imposed such a period in its wisdom, in order to act as a safeguard against impulsive decisions that may be taken by parties to separate and rid themselves of the marriage. This period will insulate possible peril that may ensue for the parties as a follow-up of the decision for mutual separation."

"In the Indian social context, though marriages are solemnised by two individuals, it is seen more as a union for laying the foundation for a strong family and society. Many laws have been made and many rights have been created based on familial relationships," the court said.

"The legislature, therefore, decided that a minimum period of separation must precede before the presentation of a petition for divorce on the ground of mutual consent. We would not have thought of interfering with a minimum period as it carries a laudable object behind it. But we are constrained to note that no remedy is provided by statute in exceptional and depraved conditions for a spouse to approach the Courts to get rid of the minimum period," it said.

The Court further said that the legislature in their wisdom felt that some provisions are to be made to relax the rigour of the minimum period to entertain a petition within the waiting period of separation in other statutes.

"This essentially ensures that efficacious judicial remedy is provided in cases of exceptional hardships to the parties. The denial of such a remedy to Christians bothers us. The legislature in other statutes, having felt the need for relaxation, to redress exceptional circumstances through judicial remedy, cannot remain in oblivion when concerning the Christian community," the court said.

The court further said that, "men have free choice to enter into marriage. However, the same freedom is not accorded to the men to separate the marriage. The State's interference in marriage through legislation is on the assumption that men are ill-equipped to take a decision for themselves and the State is competent to take decisions by taking note of the welfare, needs, interests etc. of men."

"Legal paternalism is often justified with beneficial intent which is sought to be secured through legislation, regulation etc. From a liberal perspective, any encroachment on an individual's right to take a decision would be viewed as an encroachment on personal liberty. But in our constitutional scheme, the competency of a legislature to make laws for the common good, keeping in mind the social context and the larger community interest cannot be termed as an encroachment on personal liberty," it said.

The court said that the collective good we find as rationale cannot trample on the rights of individuals to depart if his or her need to depart is not relatable to the collective good.

"We are not holding that the law is discriminatory because of the reason that different communities in equal circumstances are given a different treatment," the High Court said.

It said that the law intends to apply to a particular class or group and that group is not homogeneous with certain classes or groups being excluded, compelling the legislature to make different laws for each group.

"We are of the firm view that when liberty is taken away to act according to one's will, without any procedure to safeguard the fallout of such restrictions, the law will become oppressive. But for the legislation, parties would be able to separate themselves. The legislature cannot take away liberty without adequately safeguarding the interest of the individuals whose interests to seek remedy are affected even if such legislation intends to achieve laudable objects," it added.

In this petition, Court directed the Family Court to number the petition and dispose of the same within 2 weeks and to grant a decree of divorce without insisting on the further presence of parties.

The court also put a question whether the law could command the parties to suffer when the waiting period mandated by it would cause hardship to the parties.

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