Time to revamp marriage laws in the country: Kerala High Court

Representational image: Daniel Jedzura/Shutterstock

Kochi: Nearly a month after the Delhi High Court stated that "a Uniform Civil Code (UCC) should not remain a mere hope in the Constitution", the Kerala High Court too has endorsed a common law for marriage and divorce.

"A secular law for marriage and divorce, applicable to all, is the need of the hour. In addition to individuals marrying according to their own religious beliefs, the solemnisation of marriage under a common code of law should be compulsory," the Kerala High Court opined while stressing on the need to revamp marriage laws in the country.

The division bench of Justice A Muhamed Mustaque and Justice Kauser Edappagath made the observations, while rejecting an appeal given by a Kozhikode resident who challenged the divorce granted to his wife.

On July 7 single-judge Delhi High Court bench of justice Pratibha M Singh had observed the country needs a code that would be “common to all” so that uniform principles could be be applied on matters such as marriage, divorce, succession, etc.

“The youth of India belonging to various communities, tribes, castes or religions who solemnise their marriages ought not to be forced to struggle with issues arising due to conflicts in various personal laws, especially in relation to marriage and divorce,” the judge noted.

Marital rape ground for divorce

On Friday, the Kerala High Court while pointing out the limitations in the law on divorce also pronounced that sexual relationship without the partner's consent was marital rape and that it was sufficient ground for granting divorce.

"There is no difficulty in bringing a common code of law on matters of marriage and divorce. Nobody should be exempted from common law in the name of personal law. Non-consensual sex is an infringement of the partner's individuality and freedom. In such cases, the court cannot deny divorce and ask them to continue in their miserable lives," the court stated in the verdict.

Divorce laws obsolete?

The Kerala High Court also pointed out that the laws framed during a time when divorces were granted for absolutely unavoidable reasons are still in force.

"In weddings that become venues of pompous show, personal choices or value of relationships are not often taken into account. Discord is also natural. Still, many were not ready to seek divorce, in fear of society. But the situation has changed now," the court said.

"The individual's views on marriage and divorce have begun to gain importance. If the marital life is miserable, several people are deciding to part ways. But is the current law capable of safeguarding the best interests of the individuals? There should be a law, allowing individuals to take decisions based on their free will," the court said.

Courts should favour individual's freedom

"Instead of courts exercising their authorities over individuals, the courts should help them in taking their own decisions. In the case considered by the court, the woman had been waiting for justice for 12 years. This strengthens the suspicion of whether the justice system in the country is adequate to recognise the individual's freedom.

“Those who secure divorce might suffer significant losses. Such losses cannot be ignored either. The law should also ensure the protection of the weak. There should also be a provision to recommend measures for mitigating the damages due to marriage and divorce. Laws and a system that handle human's problems humanely are needed," the HC division bench stated.  

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