In a significant judgment, the Kerala High Court on Friday struck down Section 10A of the Indian Divorce Act, that stipulates a waiting period of 1 year for filing petitions for divorce by mutual consent.
A division bench of Justices A Muhamed Mustaque and Shoba Annamma Eapen opined that the mandatory waiting period affects the right to liberty of citizens, in this case Christian citizens to whom the Indian Divorce Act applies.
“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,” the bench opined.
The bench made it clear that the effect on the rights of citizens is what has caused it to strike down the provision and not the fact that there are differences in the waiting period mandated in other personal laws.
“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…. 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,” the bench elaborated.
“We hold that the fixation of the minimum period of separation of one year as stipulated under Section 10A is violative of the fundamental right and accordingly, strike it down”, the Court held.
Justice A Muhammed Mustaque, Justice Shoba Annamma Eapen
Justice A Muhammed Mustaque, Justice Shoba Annamma Eapen
The bench also opined that even though the legislature might have good intentions in stipulating the waiting period, it curtails the rights of spouses to judicial remedy if they suffer hardship during the waiting period.
“It is 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. The right to a judicial remedy if curtailed by statutory provisions, the Court will have to strike it down as it is violative of a fundamental right. The right to life encompasses judicial remedy as well. Article 8 of the Universal Declaration of Human Rights declares that everyone has the right to an effective remedy by the competent national Tribunals for acts violating fundamental rights granted by the constitution or by law. 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 judgment stated.
The judgment was passed on a plea moved by two young Christians who got married as per Christian rites in January this year. They soon realised their marriage was a mistake, did not consummate it, and moved a joint petition for divorce under Section 10A of the Divorce Act before a Family Court by May.
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 and realising that the bar is created by a statute, the couple moved a writ petition to declare Section 10A(1) of the Act as unconstitutional.
The Court referred to a verse from Bible at the outset of its judgment to summarise the issue at hand.
““What God has joined together, let no one separate” is the sublime ideal read in the Bible (Matthew 19:6, Mark 10:9). Do spouses in that union have the right to separate their marriage, mutually, before the aura of the marriage period of one year vanishes, is the question presented in these matters.”
It noted that Section 10A previously mandated a 2-year waiting period. However, the Kerala High Court itself, in Saumya Ann Thomas v. The Union of India & Ors. held that the stipulation of a period of two years as the minimum mandatory period under Section 10A was arbitrary and oppressive and the period of two years has to be read as one year.
This was after taking note of the one-year period stipulated 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.
Speaking on the legislature’s possible intent in stipulating such a waiting period, the Court said that it was intended as a safeguard against impulsive decisions that may permeate the decision by stipulating a gestation period before presenting a petition for divorce on mutual consent.
“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,” the Court said.
However, even though the harm caused to others may have influenced the legislature, the Court noted 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 denial of such a remedy to Christians bothers us. The Court must circumvent from entering into the domain of legislature by providing measures of relaxation….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,” the Court said.
In the context of the present case, the Court opined that the collective good intended cannot be used as a reason to trample upon the rights of individuals to depart if his or her need to depart is not relatable to the collective good.
Accordingly it struck down Section 10A.
It also directed the Family Court to consider and dispose of the plea by petitioners for divorce within a period of two weeks, without insisting on their personal appearance.
Advocates Sikha G Nair, Sandhya K Nair, Anjana Suresh E and Beena N Kartha appeared for the petitioners while the respondents were represented by Deputy Solicitor General Manu S.
Advocates Sandhya Raju and R Leela served as Amicus Curiae.
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