Breaking: [Christian Divorce] Kerala High Court Strikes Down 10A Of Divorce Act, 1869, One Year Waiting Period For Filing Divorce Petition By Mutual Consent Declared Unconstitutional

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

The Division Bench comprising Justice A. Muhamed Mustque and Justice Shoba Annamma Eapen, noted 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 solemnized 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 legislature, therefore, decided that a minimum period of separation must precede before presentation of a petition for divorce on the ground of mutual consent".

However, the Court was quick to note that in the instant case, it was posed with the question as to whether, in the absence of any provisions allowing the parties to a marriage to move the Court before the lapse of one year from the date of marriage or the date of separation, the provisions could stand the test of constitutional scrutiny

"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. 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", it observed. 

The Court on noting that legislature had incorporated provisions in other statutes such as Section 29 of the Special Marriage Act and Section 14 of the Hindu Marriage Act, which enabled the Courts to entertain the petition to be presented before one year had lapsed from the date of marriage, found that no such provision had been incorporated in the Divorce Act. In this light, it noted, 

"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 marriage of the parties herein was solemnized on 31.10.2021 as per Christian rites and ceremonies. On realizing that their marriage was a mistake, and not having consummated the marriage, the parties filed a joint petition for divorce before the Family Court, Ernakulam under Section 10A of the Divorce Act, 1869. It is noted that however, the Family Court registry refused to number the same, due the bar in filing a joint petition within one year after the marriage, as stipulated under Section 10A of the Act. The petition was filed under Section 151 of the Code of Civil Procedure. The Family Court rejected the petition holding that, "one-year separation after the marriage is an essential condition to maintain a petition under Section 10A of the Act". 

It is this context that the parties approached the High Court challenging the said order of the Family Court. The couple also filed a writ petition challenging the one year period fixed under Section 10A(1) of the Act as unconstitutional. 

The Court in this case perused the backdrop in which the Divorce Act had been enacted and amended in the country, and found that it was pursuant to the recommendations in the 164th Law Commission Report that the Central Government convened a meeting of prominent leaders of the Christian Communities in India and Members of Parliament belonging to the Christian community on 28.4.2001 in order to enact a comprehensive law governing marriage and divorce and other allied aspects of Christians in India.

"Based on the understanding arrived at in the meeting, the divorce law was amended by removing the onerous conditions as contained in Section 10 of the Act and also doing away with the procedures causing delay in obtaining divorce due to the provisions contained in Sections 17 and 20 of the Act. One of the salient provisions was brought in by amendment in the year 2001, namely, the dissolution of marriage by mutual consent. Section 10A of the Act was inserted as a provision for dissolution of marriage by mutual consent in addition to Section 10 of the Act, the grounds for dissolution of marriage on fault basis", the Court observed.

Perusing the said provision Section 10A, the Court noted that a petition for dissolution of marriage could be presented to the Court under Section 10A only on the ground that the parties to the marriage have been living separately for a period of two years or more and that they have not been able to live together.

Subsequently, after the Kerala High Court Division Bench decision in Saumya Ann Thomas v. The Union of India & Ors. (2010), this stipulation of 2 years period was found to be arbitrary and oppressive and read as one year, along the lines of those provided in Section 28(1) of the Special Marriage Act, Section 13B(1) of the Hindu Marriage Act and Section 32B(1) of the Parsi Marriage and Divorce Act.

It is in this context that the Court delved into the question as to whether the law could command the parties to suffer when the waiting period mandated by it would cause hardship to the parties. 

"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", the Court noted.

However, it added that while the Court had to circumvent from entering into the domain of legislature by providing measures of relaxation, the Court had to examine whether the law that was passed curtailing the individual liberty was done to further any common good or to protect the larger interest of the parties.

"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 different treatment. 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 observed.

Noting that the Court may be able to grant a divorce even before the period of one year, on being satisfied with the ground for divorce under Section 10 of the Act which lists the fault grounds, the Court however, observed that it could not, permit the same without the lapse of the stipulated period of one year in those instances where the parties wished to avoid the stigma, which was the dilemma herein. 

"In view of the fact that more than six months have lapsed since the presentation of the petition for divorce before the Court, we find no further reason for their appearance before the Family Court again", the Court held while directing the Family Court to number the petition and dispose the same within 2 weeks and to grant a decree of divorce without insisting further presence of parties.

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

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