Secular Law For Marriage And Divorce is The Need Of The Hour: Kerala High Court

The Kerala High Court while dealing with a matrimonial appeal examining the validity of marital rape as a ground for divorce, remarked that marriage and divorce must be brought under the secular law. 

A Division Bench of Justice A. Muhamed Mustaque and Justice Kauser Edappagath while dismissing the appeal, observed as such:

"Individuals are free to perform their marriage in accordance with personal law, but they cannot be absolved from compulsory solemnization of the marriage under secular law. Marriage and divorce must be under the secular law; that is the need of the hour. Time has come to revamp the marriage law in our country."

The Court proposed so while delivering a landmark decision upholding marital rape as a good ground to claim divorce.

 While examining the legal implications involved while filing a divorce in the country, the Bench opined that the law ought to safeguard the spouse who prefers to end the legal tie with his/her partner as against any loss suffered in the relationship or on such separation. 

"Dissolubility of marriage may bring myriad losses to a spouse on such separation. While law allowing an individual to act on his or her choice, the law cannot ignore the loss of such spouse who suffered in the matrimony or in separation. Husband or wife is likely to be exposed to vulnerability on exercise of such option for separation. Vulnerability alludes to a situation of a spouse who will be disadvantaged consequent upon such separation and causation demands empowerment of such spouse. Sometimes the spouse who seeks the divorce might be responsible for the disruption of the relationship. The law has to safeguard the spouse against any loss suffered in the relationship or on such separation. Therefore, our law also should equip us to deal with marital damages and compensation. We need to have a law dealing with human problems with a humane mind to respond," the Court observed.  

As such, it was suggested by the Bench that it was imperative to bring a common code of law that applies to all communities equally in this regard, if not anything else. 

While commenting on the right of the State to interfere in such matters, the High Court opined that a sustained family constitutes happiness in the larger society and the ultimate happiness of the State. Therefore, the paternalistic intervention of the State on public good was found to be justifiable, and that the State necessarily can regulate divorce.

It was also found that the role of legislation was to lay down measures to determine the path for appropriate decisions by the individuals, while emphasising that the paternalistic intervention through legislation must be limited to help and aid parties in taking a decision for their own good.

Therefore, on this ground, the Court asseted that the framework of divorce law must be with an objective to help individuals to take a decision on their own affairs. This framework must promote a platform at different levels to enable individuals to exercise free choice.

"The forum provided under law to decide upon the fate of a relationship must be conceded with a power to enable parties to decide on the best possible choice governing their own affairs by themselves and not by wresting the power on a fictional ground to decide on their fate," the Bench added. 

Click Here To Read/ Download The Order