Kochi: The Kerala High Court has struck down the minimum of one-year period for separation for Christians under Section 10A of the Divorce Act, 1869, stating it a violation of the fundamental rights, reports Live Law.
The division bench comprising Justice A Muhamed Mustque and Justice Shoba Annamma Eapen said the period was imposed against impulsive decisions that may be taken by parties to separate and rid themselves of the marriage. The ruling brings the law on par with other laws, like the Hindu Marriage Act, that govern matrimony in other communities.
"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 solemnised 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," the court said.
However, the court said that since the law does not provide any provision for either party to appraoch the court to get the waiting period suspended, the provisions could stand the test of constitutional scrutiny.
"...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....The denial of such a remedy to Christians bothers us," the bench observed.
The case was filed by a 30-year-old man and a 28-year-old woman, who got married in January, 2022, as the family court refused to entertain their case stating the one-year period.
