The court established that the one-year waiting period for mutual consent divorce under the Divorce Act is unconstitutional, infringing on fundamental rights.

J U D G M E N T

Dated this the 9th day of December, 2022 A.Muhamed Mustaque, J.

“What God has joined together, let no one separate” is the sublime ideal read in the Bible (Matthew 19:6, Mark 10:9). Do spouses in that union have the right to separate their marriage, mutually, before the aura of the marriage period of one year vanishes, is the question presented in these matters. Two young Christians are before us. Their marriage was solemnized on 30.01.2022, in accordance with the Christian rites and ceremonies. They realised that their marriage was a mistake. The marriage was not consummated. On 31.5.2022, they moved a joint petition for divorce before the Family Court, Ernakulam, under Section 10A of the Divorce Act, 1869 (hereinafter referred to as the “Act”). The Family Court registry refused to number the same, apparently noting the bar in filing a joint petition within one year after the marriage, as referrable under of the Act. The petition was filed under Section 151 of the Code of Civil Procedure. This was taken up on the judicial side. The Family Court rejected the petition holding that one-year separation after the marriage is an essential condition to maintain a petition under of the Act. Challenging this order, both parties approached this Court in O.P.No.398/2022. Thereafter, the matter was heard at length. In O.P.No.398/2022, this Court appointed Advocates Sandhya Raju and Leela R. as amici curiae to assist the Court. Realising that the bar is created by statute, the couple filed W.P. (C).No.28317/2022 to declare that the waiting period of one year fixed under (1) of the Act is unconstitutional. Both matters were taken up together.

2. Heard the learned counsel Smt.Sikha G. Nair appearing for the petitioners, Amici curiae Adv.Sandhya Raju and Adv. R Leela and the learned Central Government Counsel, Sri.Suvin R.Menon.

3. The Indian Divorce Act was enacted during the British period in the year 1869 to confer on certain Courts the jurisdiction in matrimonial disputes of persons professing Christianity. By the Amendment Act 51/2001, the word “Indian” appearing in the name of the Act had been omitted. The 1869 law was based on the British enactment of 1858. The British scrapped the above law in 1923. The Law Commission of India in its 164^th report recommended that the Parliament enact a comprehensive law governing marriage and divorce and other allied aspects of Christians in India. Based on the recommendation, the Central Government convened a meeting of prominent leaders of the Christian Communities in India and Members of Parliament belonging to the Christian community on 28.4.2001. Based on the understanding arrived at in the meeting, the divorce law was amended by removing the onerous conditions as contained in Section 10 of the Act and also doing away with the procedures causing delay in obtaining divorce due to the provisions contained in Sections 17 and 20 of the Act. One of the salient provisions was brought in by amendment in the year 2001, namely, the dissolution of marriage by mutual consent. Section 10A of the Act was inserted as a provision for dissolution of marriage by mutual consent in addition to Section 10 of the Act, the grounds for dissolution of marriage on fault basis.

Section 10A of the Act reads thus:

10-A. 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 been able to live together and they have mutually agreed that the marriage should be dissolved.

(2) On the motion of both the parties made not earlier than six months after the date of presentation of the petition referred to in sub-sec