Kerala HC declares unconstitutional stipulation of 1-yr separation or more for filing divorce plea

The Kerala High Court has declared as unconstitutional the stipulation of one year of separation or more for filing a divorce petition by mutual consent under the Divorce Act, saying it is violative of fundamental rights.

A division bench of the high court comprising Justice A Muhamed Mustaque and Justice Shoba Annamma Eapen also observed the Union government should seriously consider having a uniform marriage code in India to promote common welfare and the good of spouses in matrimonial disputes.

Observing that the law differentiates parties based on religion in regard to welfare in a matrimonial relationship, the high court said in a secular country, the legal paternalistic approach should be on the common good of the citizens rather than based on religion.

"The state's concern must be to promote the welfare and good of its citizens, and religion has no place in identifying the common good," it said.

The High Court gave this order on a plea filed by a young Christian couple challenging the fixation of the minimum period of separation of one year under Section 10A of the Divorce Act, 1869 as being violative of fundamental rights.

Addressing the question whether spouses have the right to separate their marriage mutually before the aura of the marriage period of one year vanishes, the court held 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".

"W.P.(C).No.28317/2022 is allowed declaring that 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," it said.

The high court also directed the family court to dispose of the divorce plea filed by the couple within two weeks and grant a decree of divorce without insisting on further presence of parties.

It observed that the legislature's competence to enact laws to regulate divorce cannot be doubted as it has an avowed intention to uphold the common good and welfare of the people and society.

"The state knows what is best for the couple and the community. The grounds of divorce on a fault basis have regulated divorce but in a practical sense, it has resulted in hardships rather than in promoting welfare. The impact of welfare objectives must reflect on the parties," the court said.

"Today, the family court has become another battleground, adding to the agonies of parties seeking a divorce. This is obvious for the reason that the substantial legislation enacted prior to Family Courts Act was fashioned on a platform to adjudicate upon adversarial interests rather than to promote the common interest or good.

"The time has come for a change in the law applicable to the parties on a common uniform platform," the high court said.