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”.
