1-yr waiting period to file for divorce struck down

By, Thiruvananthapuram
Dec 09, 2022 11:54 PM IST

The order striking down what is known as the cooling-off period said the provision, contained in Section 10A of the Divorce Act (1869), robbed people of their right to liberty.

The Kerala high court onFriday struck down the one-year waiting period for couples seeking divorce through mutual consent, holding it unconstitutional, and asked the Union government to consider bringing a uniform marriage law in India.

Religion, the judgment added, “has no place in identifying common good”, according to the report. (HT Archives)
Religion, the judgment added, “has no place in identifying common good”, according to the report. (HT Archives)

The order striking down what is known as the cooling-off period said the provision, contained in Section 10A of the Divorce Act (1869), robbed people of their right to liberty.

A division bench of justices Muhamad Mustque and Shoba Annama Eapen observed that the “legislature must have imposed such a period in its wisdom to act as a safeguard against impulsive decisions, but it cannot be held as a general rule in all cases”. It said: “Mandatory waiting period affects the right of liberty of citizens and it can stand test of constitutional scrutiny”.

“We are of the firm view that when liberty is taken away to act according to one’s will, without any procedure to safeguard the fallout of such restrictions, the law will become oppressive,” the court observed. The court was hearing the divorce petition of a Christian couple.

Backing the concept of a uniform civil code replacing the various personal religious laws the country has at present, the court, according to a report by news website Bar and Bench, said: “In a secular country, the legal paternalistic approach should be on the common good of the citizens rather than based on religion”

Religion, the judgment added, “has no place in identifying common good”, according to the report.

The marriage of the couple in the case was solemnised in 2021 as per Christian rituals. But soon they realised their marriage was a “mistake and they could not get along”, following which they filed a petition for divorce in a family court in Ernakulam, Kerala. The court refused to entertain their petition under Section 10 (A) of the Divorce Act, which mandated a one-year wait from the marriage date to file the plea. Following this, they moved the HC and contended that one-year general period in all cases was “unconstitutional”.

“The legislature cannot take away liberty without adequately safeguarding the interest of the individuals whose interests to seek remedy are affected even if such legislation intends to achieve laudable objects,” the court observed. It said though legislature has good intentions for waiting period it curtails rights of spouses to judicial remedy if they suffer hardship during the waiting period.

“We hold that the fixation of minimum period of separation of one year as stipulated under Section 10A is violative of the fundamental rights and accordingly, strike it down”, it ruled.

”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. The right to life encompasses judicial remedy as well. Article 8 of the Universal Declaration of Human Rights declares that everyone has the right to an effective remedy by the competent national tribunals for acts violating fundamental rights granted by the Constitution or by law,” the court order read.

The high court also directed the family court to grant the decree of divorce in two weeks without insisting for presence of the parties concerned.

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  • ABOUT THE AUTHOR

    Ramesh Babu is HT’s bureau chief in Kerala, with about three decades of experience in journalism.

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