Breaking: Centre Should Seriously Consider Having A Uniform Marriage Code; Family Courts Have Become Another Battleground: Kerala High Court

The Kerala High Court on Friday said that the Union Government should seriously consider having a uniform marriage code in India in order to promote the common welfare and good of spouses in matrimonial disputes.

The Division Bench of Justice A. Muhamed Mustaque and Justice Shoba Annamma Eapen said the law at present differentiates parties on the basis of their religion, when it comes to matrimonial relationships.

"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," said the court.

The court said while the legislature's competence to enact laws to regulate divorce could not be doubted, the "grounds of divorce on a fault basis" that have regulated divorce, in a practical sense has resulted in hardships rather than in promoting welfare. It added that impact of welfare objectives must reflect on the parties.

"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 Court made the observations in its decision on a petition 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.

It further added that legislation on divorce must focus on parties than on 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". 

Advocates Sikha G. Nair, Sandhya K. Nair, Anjana Suresh E., and Beena N. Kartha appeared on behalf of the petitioners. Deputy Solicitor General of India S. Manu appeared on behalf of the Union Government. Advocates Sandhya Raju and Leela R. were appointed as the Amicus Curiae in the instant case. 

Case Title: Anup Disalva & Anr. v. Union of India

Citation: 2022 LiveLaw (Ker) 640

Click Here To Read/Download The Judgment