The Kerala High Court has declared Section 10A of the Divorce Act, 1869 as unconstitutional and called upon the Central Government to consider framing a uniform marriage code in India to promote the common welfare and good of spouses involved in matrimonial disputes.

A Bench comprising Justice A Muhamed Mustaque and Justice Shoba Annammaa Eapen allowed the petition and observed that fixation of the minimum period of separation of one year under Section 10A was violative of the fundamental rights and was struck down. "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."

In this case, the writ petition was filed by two young Christians who got married in January 2022 as per religious rites. They realized that 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. The Family Court rejected the petition and held that one year separation period after the marriage was an essential condition to maintain a petition under Section 10A of the Act. Realizing that this bar was created by statute, this writ petition was preferred to declare the provision unconstitutional.

Advocate Shikha G. Nair appeared on behalf of the petitioners and Advocates Sandhya Raju and R. Leela were appointed as amicus curiae to assist the Court.

The Court observed that the grounds of divorce on fault-based theory have though regulated divorce but had resulted in hardships rather than promoting welfare and said that "the Family Court has become another battleground, adding to the agonies of parties seeking a divorce."

The Court further held that the time has come to change the law and observed that the State must be concerned about promoting the welfare and good of its citizens and that religion has no place in identifying the common good.

"In a secular country, the legal paternalistic approach should be on the common good of the citizens rather than based on religion," the Court observed.

The Court further observed that the procedure of seeking divorce shall not be such as to aggravate the bitterness by asking couples to fight on preordained imaginary grounds and relied upon its decision in the case of Saumya Ann Thomas v. The Union of India and others [MANU/KE/0255/2010] wherein it was held that 'the stipulation of a period of two years as the minimum mandatory period under Section 10A is arbitrary and oppressive and the period of two years has to be read as one year' and further said that the mandatory waiting period affects the rights to liberty of citizens.

Accordingly, the Writ Petition was allowed and the provision of Section 10A of the Act was declared unconstitutional.

Cause Title- Anup Disalva v. Union of India

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