[S. 10A Divorce Act] 1-year waiting period for filing divorce by mutual consent is violative of fundamental rights: Kerala HC

The Kerala High Court on Friday declared that the stipulation of the one-year period or more for the purpose of filing a divorce petition by mutual consent under Section 10A of the Divorce Act, 1869 is violative of fundamental rights.

The bench of Justice A Muhamed Mustaque and Justice Shoba Annamma Eapen, therefore, declared the fixation of the minimum period of separation of one year as stipulated under Section 10A unconstitutional and struck it down. 

The court passed the order in a plea moved by two young Christians who got married as per Christian rites and ceremonies on January 31, 2022. The couple soon realised that their marriage was a mistake and therefore, they did not consummate it.

Thereafter, they moved a joint petition for divorce under Section 10A of the Divorce Act, 1869 before a Family Court on May 31, 2022.

However, 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.

Challenging this order, both parties approached the high court with a prayer to declare the waiting period of one year fixed under Section 10A(1) of the Act unconstitutional.

The division bench observed that the Indian Divorce Act was enacted during the British period in the year 1869 to confer on certain Courts the jurisdiction in matrimonial disputes of persons professing Christianity.

"The 1869 law was based on the British enactment of 1858. The British scrapped the above law in 1923," it noted. 

Court further stated that the harm likely to cause others was something that bothered the legislature to fix a mandatory minimum period to present a petition for mutual divorce. 

"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 bench said. 

Further, Court stressed that, unlike the Divorce Act, there is no such mandatory prescription of two years (which later got reduced to one year) under the Hindu Marriage Act and the Special Marriage Act, etc.

The denial of such a remedy to Christians bothers us, the court said while stressing that Individual liberty when curtailed, the Court has to examine whether the law was passed to further any common good or to protect the larger interest of the parties.

Court found that the mandate of Section 10A(1) will become oppressive if the parties are not given the option to highlight hardships and exceptional hardships they may experience during the waiting period.

Court highlighted that Section 10 of the Divorce Act permits divorce on fault grounds which include willful non-consummation of marriage. 

On recognizing the existence of this ground on the basis of fault, one may be able to obtain a divorce from the Court by not contesting the same. However, if they have shown wisdom, to avoid stigma, the Court cannot permit to move the petition without the lapse of a period of one year after separation, court pointed out. 

Therefore, to put an end to this dilemma and hardship that would be faced by the parties, the court struck down the minimum period of separation of one year as stipulated under Section 10A.

Moreover, before parting with the judgment, court threw its weight behind a uniform marriage code. Court said that the Union Government should seriously consider having a uniform marriage code in India to promote the common welfare and good of spouses in matrimonial disputes.

Case Title: Anup Disalva v Union of India