The Hindu : Front Page : Period of separate living under Divorce Act reduced

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Friday, Feb 26, 2010
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Period of separate living under Divorce Act reduced

Special Correspondent

High Court ruling applicable to Christian couples

Court brings down the period from two years to one year
In conformity with the provisions of other divorce laws

Kochi: A Division Bench of the Kerala High Court, on Thursday, brought down from two years to one the minimum period of separate living, as contemplated under Section 10(A) of the Divorce Act, before Christian couples can file a petition seeking dissolution of marriage by mutual consent before a district court.

The Bench, comprising Justice R. Basant and Justice M.C. Hari Rani, held that the stipulation of two years could be “severed” and “read down” to one year to bring it in conformity with the provisions of other divorce laws to avoid the vice of unconstitutionality.

The court, while dealing with a divorce petition filed by Saumya Ann Thomas of Thiruvananthapuram, held unconstitutional the prescription of two years as it offended Articles 14 (equality before law) and 21 (right to life) of the Constitution. The court pointed out that no such long period was prescribed in other laws relating to the divorce of other communities.

(The Divorce Act is applicable to Christians. Besides, laws of other religions prescribe a period of one-year separate living before filing such a petition).

The court held that the stipulation of different periods for different religions was not just and fair. Therefore, it rendered the stipulation “unreasonable, arbitrary and fanciful and oppressive.”

The court said the period was prescribed to ensure that a hasty decision to dissolve marriage was not taken. It was provided to ensure that the couples had sufficient forethought and contemplation before a divorce application was filed.

The petitioner contended that the provisions of the Special Marriage Act, the Hindu Marriage Act and the Parsi Marriage and Divorce Act had required the couples seeking divorce by mutual consent to live separately for one year before filing divorce petitions.

So, there was no justification for insisting on a longer period for Christians. The right to marriage and divorce by mutual consent must be reckoned as part of the right to life guaranteed under the Constitution. The stipulation was discriminatory. It went against the principle of equality before law.

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