Union Govt should consider having Uniform Marriage Code in India: Kerala HC

The Kerala High Court on Friday observed that the time has come for a change in the law applicable to the parties in a marriage on a common uniform platform.

The bench of Justice A Muhamed Mustaque and Justice Shoba Annamma Eapen 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.

The court said that the current law differentiates parties based on religion in regard to welfare qua matrimonial relationship. "In a secular country, the legal paternalistic approach should be on the common good of the citizens rather than based on religion," it held. 

The observations were made in a plea 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.

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 allowed the couple's plea and 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 is violative of fundamental rights and is declared unconstitutional.

Court also directed the concerned Family Court to number the petition presented by the petitioners seeking divorce on mutual consent and dispose of the same within two weeks.

Before parting with the judgment, court threw its weight behind a uniform marriage code. Court also said, "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".

Moreover, court added that the legislation on divorce must focus on the parties rather than the dispute itself. "In matrimonial disputes, the law must aid parties to resolve the differences with the assistance of the Court," It said. 

Case Title: Anup Disalva v Union of India