IMPORTANT POINT
Stipulation of period of 2 years of mandatory minimum separate residence for those to whom Divorce Act applies, in contradistinction to those similarly placed to whom Section 13B of Hindu Marriage Act. Section 32B of the Parsi Marriage and Divorce Act and Section 28 of Special Marriage Act would apply, offends mandate of equality and right to life under Articles 14 and 21 of Constitution.

R. Basant, J.—Is the stipulation of a period of two years as the minimum mandatory period of separate residence in Section 10A(1) of the Divorce Act right, just and fair? Is it arbitrary, fanciful and oppressive? Does that stipulation offend Article 14 and/or Article 21 of the Constitution? Does that stipulation deserve to be read down to “one year” to save the provision from the vice of unconstitutionality? These interesting contentions are raised for our consideration in this Writ Petition.

2. These questions arose for consideration before us in this Writ Petition as also in WP (C) No. 24219/08. Both were heard together. We have had the advantage of hearing Sri. G. Shrikumar, the learned counsel who was requested to render assistance as amicus curiae to this Court. We have also heard the arguments of Advocates M/s. T.S. Harikumar, Liji J. Vadakkedom, H.B. Shenoy and T.P.M. Ibrahim Khan, the learned Assistant Solicitor General of India. W.P. (C) No. 24219/08 is being disposed of by a separate judgment in view of certain vital difference in the facts scenario in that case. In fact we note that the bulk of arguments were advanced in W.P. (C) No. 24219/08. We must straightaway record our appreciation for the able and effective assistance rendered to us by Sri G Shrikumar who appeared as amicus curiae as also Advocate Sri. Ligi J. Vadakkedom who appeared for one of the parties.

3. To the vital and crucial facts first. The petitioner and the 2nd respondent are spouses. They are Christians by faith. Their marriage was solemnized on 6.4.08 in accordance with Christian religious rites. Differences and disagreements arose instantly after marriage and the spouses started separate residence with effect from 21.9.08. The petitioner herein filed an application for divorce on 5.12.08. That petition was numbered as O.P.No.1313/08. During the pendency of that petition, the parties appear to have settled all their outstanding disputes. They entered into Ex. P1 agreement. They consequently filed I.A. No. 536/09 with a prayer that the marital tie may be dissolved by a decree for divorce on mutual consent under Section 10A of the Divorce Act. They filed I.A.No.537/09 to dispense with the waiting period of six months under Section 10A(2) of the Divorce Act. By the impugned order, the court below rejected both the applications holding that the period of two years having not elapsed admittedly from the date of commencement of separate residence, this joint petition under Section 10A of the Divorce Act is not maintainable.

4. The learned counsel for the petitioner as also the learned counsel for the 2nd respondent have been heard. The learned counsel for the spouses assail the impugned order on the following grounds:

1. The period of two years stipulated under Section 10A (1) and the period of six months stipulated under Section 10A(2) of the Divorce Act must have been waived and dispensed with by the learned Judge of the Family Court.

2. The stipulation of a period of two years under Section 10A(1) is arbitrary, capricious and fanciful; is not fair, just, right and reasonable and consequently offends the right to equality of the petitioner under Article 14 of the Constitution and her right to life under Article 21 of the Constitution. The same is liable to be read down as one year and consequently divorce under S.10A of the Divorce Act is liable to be granted.

5. To appreciate this contention raised, we deem it necessary to extract Section 10Aof the Divorce Act. It reads thus:

“10A. Dissolution of marriage by mutual consent— (1) Subject to the provisions of this Act and the rules made thereunder, a petition for dissolution of marriage may be presented to the District Court by both the parties to a marriage together, whether such marriage was solemnised before or after the commencement of the Indian Divorce (Amendment) Act, 2001, on the ground that they have been living separately for a period of two years or more, that they have not been able