The two-year separation requirement under Section 10A of the Divorce Act, 1869 is unconstitutional and read down to one year; this declaration by a High Court has pan-India effect on a parliamentary Act.

1. Invoking jurisdiction of this Court under Section 19(1) of Family Court Act, 1984, the appellants, who are husband and wife, have preferred this appeal calling in question the legality, validity and correctness of impugned order dated 04/11/2025 (Annexure A/1) passed by learned Principal Judge, Family Court, Bilaspur whereby the application filed by the appellants under Section 10A of the Divorce Act, 1869 (hereinafter, “the Act of 1869”) seeking divorce by mutual consent has been rejected holding it to be premature.

2. The short question involved in this appeal is, “whether learned Principal Judge, Family Court, Bilaspur is justified in dismissing the application filed by the appellants under Section 10A of the Act of 1869 for dissolution of marriage by mutual consent holding it to be premature on the ground that they had not been living separately for a period of two years or more at the time of presentation of the application ?”

3. The aforesaid question arises on the following factual backdrop :-

(a) The appellants herein are Christians and their marriage was solemnized on 25/06/2025 at Disciples of Christ Church, Bilaspur, however, on account of mutual discord immediately thereafter, they started residing separately from July, 2025 and they filed an application for grant of divorce by mutual consent on 04/11/2025.

(b) Learned Family Court, Bilaspur, by its impugned order dated 04/11/2025 (Annexure A/1) rejected the application filed by the appellants herein holding that there is a stipulation of living separately for two or more years for filing an application for dissolution of marriage by mutual consent as provided under Section 10A of the Act of 1869 and it has not been complied with, therefore, the application filed by the appellants is not maintainable and the Family Court proceeded to reject the said application holding it to be premature.

4. Mr. Curtis Collins, learned counsel for the appellants, would submit that Section 10A of the Act of 1869 has been declared unconstitutional by the High Court of Kerala in the matter of Saumya Ann Thomas v Union of India, [2010 SCC Online Ker 5197] which would have a Pan-India effect and therefore, it is binding on all the Family Courts in the State of Chhattisgarh including the Family Court, Bilaspur. As such, the impugned order is liable to be set aside.

5. Mr. Rahul Tamaskar, learned Amicus Curiae, would submit that the decision of Kerala High Court in the matter of Saumya Ann Thomas (supra) has been followed with approval by the High Court of Karnataka in the matter of Shiv Kumar v. Union of India, [2014 SCC Online Kar 10121] as well as by the Bombay High Court in the matter of Lancy Leo Mendonka v. Union of India, [2015 SCC Online Bom 5743]. He would further submit that the decision rendered by the Kerala High Court in Saumya Ann Thomas (supra) declaring Section 10A of the Act of 1869 as unconstitutional would be operative all throughout India in light of the decision rendered by the Supreme Court in the matter of Kusum Ingots & Alloys Ltd. v. Union of India, [(2004) 6 SCC 254], therefore, the impugned order is liable to be set aside.

6. We have heard learned counsel for the parties, considered their submissions made herein-above and went through the records with utmost circumspection.

7. In order to consider the plea raised at the Bar, it would be appropriate to notice the provision contained under Sub- section (1) of Section 10A of the Act of 1869, which states as under :-

“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 solemnized 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 bean able to live together and they have mutual