The Kerala High Court on Friday held that the minimum period of one year fixed for divorce by mutual consent under Section 10A of the Divorce Act is violative of fundamental rights and struck it down.
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, legal online portals reported.
"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.
"Noting that the Court may be able to grant a divorce even before the period of one year, on being satisfied with the ground for divorce under Section 10 of the Act which lists the fault grounds, the Court, however, observed that it could not, permit the same without the lapse of the stipulated period of one year in those instances where the parties wished to avoid the stigma, which was the dilemma herein," the bench held, according to Live Law.
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, Bar & Bench reports.
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.