10 Mar 2010

Two year waiting period for divorce for Christians unconstitutional: High Court

In a recent decision, the High Court of Kerala has declared Section 10A of the Indian Divorce Act as unconstitutional which required Christian couples to live separately for a period of two years after marriage to apply for divorce by mutual consent. The High Court was persuaded to accept the argument that while the time limit for similar claim for Hindus was one year, the requirement to wait for another one year for Christians was arbitrary and offended the constitutional mandate of equality. 

Declaring the law unconstitutional, the High Court inter alia observed as under;

32. We do first of all look at Art.44 of the Constitution which enjoins that the State must endeavour to secure for all its citizens a uniform civil code through out the territory of India. The preamble of the Constitution declares and stipulates that the Union of India shall be a sovereign, secular, socialist, democratic republic. The core values of the constitution are declared. Secularism without any dispute is one of the basic features of the Indian Constitution. The State cannot be secular until the polity also becomes secular. Constitutional secularism is not denying religion as such. The core of Constitutional secularism is the realistic understanding and acceptance that the religions shall not transgress into domains and areas where religion is and ought to be irrelevant. ... 
37. We intend to note that the prescription of the period of mandatory minimum separate residence has an objective to serve, that is to ensure the interests of sufficient forethought and contemplation before an application is filed. Even thereafter, the contemplation must continue. The stipulation of the period of minimum mandatory separate residence thus serves this purpose. Considering the purpose and the group of people to which such purpose is to apply and operate, we find the stipulation of different periods for different religions totally unjustified. That renders the stipulation not fair, just and right. It renders the stipulation unreasonable, arbitrary, fanciful and oppressive. In that view of the matter, we are satisfied that Art. 21 of the Constitution is also offended by the prescription of a separate, different and longer period of mandatory minimum separate residence for those to whom the Divorce Act applies. Having brought all persons belonging to all religions within a group/classification for the purpose of extending the benefit of the concept of divorce by mutual consent and having chosen to make that benefit available to members of all the communities within the group, later stipulation of a different more onerous period to one sub group alone on the basis of the unreasonable and irrelevant basis of religion does certainly, according to us, offend the mandate of right to life under Art.21 of the Constitution. That the discrimination manifests itself not in one common statute but in a separate statute applicable to the victims of discrimination is not relevant while considering the challenge against the unconstitutional discrimination. ...
43. Having considered all the relevant circumstances, we are of the opinion that the stipulation of a higher period of two years of mandatory minimum separate residence for those to whom the Divorce Act applies, in contra-distinction to those similarly placed to whom Sec.13B of the Hindu Marriage Act, Sec.32B of the Parsi Marriage and Divorce Act and Sec.28 of the Special Marriage Act would apply, offends the mandate of equality and right to life under Arts.14 and 21 of the Constitution.
Interesting the High Court also noted the change in the familial values and the reasons for legally providing for 'divorce by mutual consent' as under;

Marriage in the Christian and Indian traditional thought has been accepted as an indissoluble sacrament. Divorce and remarriage which are common concepts today were unknown to these systems of law. With passage of time marriage as a purely indissoluble sacrament has undergone changes conceptually. Marriage today is not looked upon in law as merely a divine institution made in heaven with the incident of indissolubility. Marriage and its dissolution, in modern judicial and legal thought, is reckoned as the incident of the human right of right to life. Marriage today is a social institution of partnership, friendship, mutual complementarity, love, affection, caring and sharing between two equal partners. Partners walk into the institution of marriage purely based on their consent and volition though after they enter such institution voluntarily, they are bound by the legal norms, ideas and procedure.
11. From a totally indissoluble institution, winds of change have swept the institution of marriage. Initially divorces on the ground of marital contumaciousness and non-existence of vitals necessary to make a marriage work were recognised by law. But later it was recognised that matrimony is after all a human institution - a bond created by exercise of the free act of will by the partners who are responsible; but fallible individuals who may err and blunder. With this emerged the concept of divorce by mutual consent. When the partners find it impossible to live out their lives with happiness and meaningfully, they were granted the option in law to walk out of such marriage subject to conditions by mutual consent. Today, most modern systems of jurisprudence recognise and accept the right of the spouses to get their marriage dissolved by mutual consent. This transformation in the concept of marriage and its dissolution and acceptance of those altered concepts by the legal systems did not take place one fine morning. Many a battle had to be fought socially and legally before the concept of divorce by mutual consent was accepted by the polity and approved by the legislature. The Indian experiment shows that the Special Marriage Act, 1954 in Sec.28 recognised the concept of dissolution of a secular marriage by mutual consent. Long later, in 1976 the concept of divorce by mutual consent was accepted and recognised under the Hindu Marriage Act. Still later in 1988 the Parsi Marriage and Divorce Act in Sec.32B accepted and recognised the concept of divorce by mutual consent. To get the concept introduced into the Divorce Act, 1869 we had to wait for a lot more of time. In 2001, after the Courts and the Law Commission incessantly demanded the incorporation of such a provision, Sec.10A of the Divorce Act found its way into the Act. It is thus that the concept of divorce by mutual consent was accepted under the Divorce Act.

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