Adopt Liberal Approach While Dealing With Divorce Pleas Based On Mutual Consent: Kerala HC [Read Judgment]

The division bench comprising Justice CK Abdul Rahim and Justice TV Anilkumar observed that, in such applications, the court should be liberal in waiving off the stipulation of Cooling off period (waiting period).

The court was considering a plea challenging family court order which had dismissed an application filed by Christian couple seeking waiver of the statutory waiting period and for an early consideration of the joint application for dissolution of the marriage.

The bench reiterated the observations made in a recent judgment in which it was held that that divorce by mutual consent is a secular concept and there can be no discrimination on the ground of religion against persons who want divorce by mutual consent. The bench further observed:

"Since it is already held by the Hon'ble Supreme Court in Amardeep Singh (supra) that the provision insisting the waiting period (cooling-off period) stipulated in the statute is not mandatory and only directory. We are of the considered opinion that the courts dealing with cases for dissolution of marriage based on mutual consent are bound to take a liberal attitude in waiving off such stipulation. When it is convinced to the court that the marital tie has been broken irretrievably and that there is only nil chances of rethinking and reunion of the spouses; and when the conditions enumerated in the ruling in Amardeep Singh (supra) stands satisfied, there is absolutely no justification for compelling the parties to wait further, in a manner prolonging their agony."

The court also observed that sanctity and solemnity of marital relationships and the beauty and charm of the 'institution of family' would be survived only when there is cordial marital relationship and cohabitation between the spouses. When there is an irretrievable break down, the social stigma attached on to the spouses, who are living separated due to such irretrievable break down of the matrimony, will be lessened or removed only when their separation is legalised into a valid dissolution of the marital tie, the bench added.

The bench also said that the courts dealing with joint applications seeking dissolution of marriage based on mutual consent should always bear in mind that the choice of life of any individual, in accordance with law, is the acceptance of identity of a person, which is constitutionally guaranteed to every citizen.

"All endeavour from the side of the courts should be in the line of protecting such rights and facilitating such expressions of choice in one's life. Therefore a liberal approach in the matter of dissolution of marriage based on mutual consent is warranted and is fully justified. Endevour of the courts dealing with matrimonial matters should always be to promote such situations. Once it became convinced that the marital tie has been broken and the spouses have failed in their attempts to keep the solemnity and sanctity of the 'institution of family' and that of their marital relationship, their legal separation need to be facilitated with utmost urgency."

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