Kerala HC makes divorce easy for Chirstians, strikes down one year separation clause
First Published: 10th December, 2022 11:45 IST
This brings it on a par with other laws that govern matrimony and divorce: Special Marriage Act and Hindu Marriage Act
The Kerala High court has struck down a provision of the Divorce Act 1869, applicable to Christians, that mandated a minimum of one year of separation before applying for divorce by mutual consent.
The Act earlier mandated two years but that was read down to one year in 2010 by the same court in a case. And now the court has gone further.
The December 9 verdict brings the law further on a par with other laws that govern matrimony and divorce among other communities, such as the Hindu Marriage Act.
Those acts allow courts to entertain mutual-consent divorce petitions before one has lapsed since marriage, so there cannot be this one-year period in the Divorce Act alone — this is essentially what the court has ruled.
The couple in this case — a 30-year-old man and 28-year-old woman — had gone to a family court, but it refused to even number the case for hearing, “apparently noting the bar in filing a joint petition within one year after the marriage… under Section 10A of the Act”.
The couple had got married in January 2022 — “realised that their marriage was a mistake” — and went to the family court in May, just about four months later. refused a hearing, they went to the high court, asking it to altogether declare the waiting period unconstitutional.
The court order noted that waiting period was legislated as one of the “safeguards against impulsive decisions”. “In the Indian social context… marriages are solemnized by two individuals, it is seen more as a union for laying the foundation for a strong family and society,” it said.
But in this case, the court said, “when the waiting period itself would cause hardship to the parties… can the law command parties to sit at the fence and suffer the agony?”
It referred to a 2010 decision that brought down the original two-year waiting period to one year, as is mentioned in the Hindu Marriage Act, Parsi Marriage and Divorce Act and the Special Marriage Act. But those acts allow pleas even before that under exceptional circumstances.
In the latest order, the court said it’s not constitutionally valid to deny permission to those covered by the Divorce Act 1869 to go to court before the lapse of one year.
“In matrimonial disputes, the law must aid parties to resolve the differences with the assistance of the Court. If a solution is not possible, the law must allow the Court to decide what is best for the parties. The procedure for seeking divorce shall not be to aggravate the bitterness by asking them to fight on preordained imaginary grounds,” the order read.
It gave two final decisions.
One, that Section 10A that mandates one-year waiting period “is violative of fundamental right and is declared unconstitutional”. And, for the couple who had moved court, it directed the family court to “grant a decree of divorce without insisting further presence of parties”.
TOPMOST STORY NOW
Live Meghalaya: TMC only alternative in the state to fight BJP: George B Lyngdoh27th January 2023
Live Boost for BJP in Tripura; TMC’s Subal Bhowmick, CPI-M’s Moboshar Ali join party ahead of Assembly Polls27th January 2023
Live Assam Police rescues 16-year-old girl from getting married to 29-year-old man27th January 2023
Live Go First fined Rs 10 lakh for leaving behind 55 passengers at Bengaluru airport27th January 2023
Go First fined Rs 10 lakh for leaving behind 55 passengers at Bengaluru airport
Airline operator Go First has been fined Rs 10 lakh after one of its flights took off for Delhi from Bangalore without 55 passengers on January 927th January 2023
Vivian Richards’ Shares First Photo From Daughter Masaba Gupta-Satyadeep Misra’s Wedding
West Indies legend Vivian Richards daughter got married to actor Satyadeep Misra. Vivian's first photo from her daughter's wedding has come out27th January 2023
“Goonjega toh yahan sirf Jai Shri Ram”: Kangana Ranaut criticizes SRK’s Pathaan for putting out Pakistan in ‘good light’
All those who are claiming Pathaan is triumph of love over hate, I agree but whose love over whose hate? Let's be precise, whose is buying tickets and making it a success, twitted Kangana Ranaut27th January 2023
‘Pariksha Pe Charcha’ is my exam too, crores of students are taking my test: PM Modi
"If a family's expectation from its children is due to societal pressure then it's a problem…We are in politics where huge pressure is created for victory. You must match expectations with ability. You must always stay focused," said PM Modi.27th January 2023
Woman orders sanitary napkins on Swiggy and gets cookies along with it. Company replies
A woman received quite a sweet surprise when she ordered some sanitary napkins on Swiggy Instamart. And without any doubt, it made her day!27th January 2023