Writ Petition No. 13112/2012 (GM-RES-PIL). Case: Mr. Shiv Kumar Vs Union of India represented by Secretary Ministry of Law and Justice and Ors.. High Court of Karnataka (India)
| Case Number | Writ Petition No. 13112/2012 (GM-RES-PIL) |
| Counsel | For Appellant: Smt. Aarti Mundkur, Adv. and For Respondents: Smt. Sinchana Adv. for Sri S. Kalyan Basavaraj, A.S.G., Smt. Niloufer Akbar, A.G.A., Sri Vasanth V. Fernandes, Adv., Sri Reuben Jacob, Adv. as Amicus Curiae and Smt. Jayana Kothari, Adv. |
| Judges | D. H. Waghela, C.J. and B. V. Nagarathna, J. |
| Issue | Constitution of India - Articles 14, 21, 226; Indian Divorce Act, 1869 - Sections 10A, 10A(1) |
| Judgement Date | February 03, 2014 |
| Court | High Court of Karnataka (India) |
Order:
B. V. Nagarathna, J.
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This Writ Petition has been filed in public interest to seek a declaration that Section 10-A of the Indian Divorce Act, 1869 (for short 'the Act') prescribing a period of 'two years' as the separation period before filing a petition for divorce by mutual consent is discriminatory and violative of Articles 14 and 21 of the Constitution. An alternative prayer is also sought by requesting the Court to read down the expression 'two years' in Section 10-A of the Act as 'one year'. We have heard learned counsel for the petitioner and learned counsel for the respondents.
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Learned counsel for the petitioner has brought to our notice a decision of a Division Bench of the Kerala High Court in Saumya Ann Thomas v. The Union of India & others [2010 (1) KLT 869]: ILR 2010 (1) Kerala 805, to contend that Section 10A(1) of the Act has been read down and the expression 'two years' is to be read as 'one year'. She has taken the contention that the expression 'two years' was in violation of Articles 14 and 21 of the Constitution as with regard to other Acts namely, Hindu Marriage Act, 1955, Parsi Marriage and Divorce Act, 1936, Special Marriage Act, 1954, all of which have only 'one year' period of separation prior to filing of the petition for divorce by mutual consent. But under the Act in question, the period of two years is causing hardship and adverse consequences on persons to whom the said Act is applicable. She also brought to our notice the fact that the Kerala High Court having held that the period of 'two years' in Section 10A(1) being...
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