W.P. (C) No. 20076 of 2009. Case: Saumya Ann Thomas Vs Union of India (UOI). High Court of Kerala (India)

Case NumberW.P. (C) No. 20076 of 2009
CounselFor Appellant: P.B. Sahasranaman, T.S. Harikumar, Liji J. Vadakkedom, H.B. Shenoy and K. Jagadeesh, Advs. And As Amicus Curiae: G. Shrikumar, Adv. and For Respondents: P. Prathecsh, S. Sudheeshkar, K. Siju, P.A. Jacob Vaidyan, Advs. P. Parameswaran Nair, Asst. Solictor General and T.P.M. Ibrahim Khan, Assistant Solicitor General of India
JudgesR. Basant and M.C. Hari Rani, JJ.
IssueDivorce Act, 1869 - Section 10A, 10A(1) and 10A(2); Indian Divorce (Amendment) Act, 2001; Hindu Marriage Act - Section 13B and 13B(1); Parsi Marriage and Divorce Act - Section 32B and 32B(1); Special Marriage Act, 1954 - Section 28, 28(1) and 28(2); Hindu Law; Constitution of India - Articles 13, 13(1), 14, 21, 44, 142 and 372; Civil Procedure ...
Citation2010 (1) KLT 869
Judgement DateFebruary 25, 2010
CourtHigh Court of Kerala (India)

Judgment:

R. Basant, J.

1. 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 W.P.(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 Ext.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 Section 10A of the Divorce Act is liable to be granted.

5. To appreciate this contention raised, we deem it necessary to extract Section 10A of 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 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-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn by both the parties in the meantime, the Court shall, on being satisfied, after hearing the parties and making such inquiry, as it thinks fit, that a marriage has been solemnised and that the averments in the petition are true, pass a decree declaring the marriage to be dissolved with effect from the date of decree.

(emphasis supplied)

The provision is in substance a verbatim reproduction of the provision in Section 13B of the Hindu Marriage Act, Section 32B of the Parsi Marriage and Divorce Act and Section 28 of the Special Marriage Act. The only difference is that instead of the period of two years mentioned in Section 10A(1) emphasised above, one year is the period of separate residence stipulated in those provisions.

6. The first contention is that the period of two years under Section 10A(1) and the period of six months under Section 10A(2) of the Divorce Act must have been waived by the Family Court in its discretion. We find absolutely no merit in this contention at all. Under the body of Section 10A(1), four conditions must co-exist before an application can be made. They are:

  1. The marriage between the spouses must have been solemnized;

  2. They have mutually agreed that the marriage should be dissolved by mutual consent;

  3. That they have not been able to live together; and

  4. That they have been living separately for a period of two years or more.

7. We are satisfied that these are the essential requirements/ingredients/preconditions which must be established to justify an application for dissolution of marriage by mutual consent under Section 10A(1). These conditions must co-exist to justify an application for divorce. There is no provision-express or implied, which can enable the court to waive/reduce the mandatory minimum period of separate residence stipulated under Section 10A. That contention cannot hence be accepted at all.

8. There was a contention raised at the Bar initially that it is enough that conditions A and B specified above along with condition C and/or D alone need be satisfied. After detailed discussions at the Bar, that contention is not pressed. We are not hence delving deeper into that contention. Suffice it to say that such a contention is not justified by the language of Section 10A. All the above four pre conditions - A, B, C and D must co-exist to justify institution of proceedings for dissolution of marriage by mutual consent under Section 10A(1) of the Divorce Act.

9. We may also mention that we find no merit in the contention that the period of six months stipulated under Section 10A(2) can and must have been waived by the Family Court. We have already dealt with this question in detail in M. Krishna Preetha v. Dr. Jayan Moorkkanatt and Anr. in Mat. Appeal No. 633/08 dated 22/2/2010. Following the decision of the Supreme Court in Anil Kumar Jain v. Maya Jain 2009 (12) Scale 115, we have held that no court other than the Supreme Court invoking its power under Article 142 of the Constitution can dispense with the mandatory period of six months specified under Section 10A(2) of the Divorce Act. In these circumstances, we find no merit in the challenge raised on ground No. 1 above.

10. We now come to the second ground raised above. Marriage in the Christian and Indian traditional thought has been accepted as an indissoluble sacrament. Divorce and re-marriage which are common concepts today were unknown to these systems of law. With passage of time marriage as a purely indissoluble sacrament has undergone changes conceptually. Marriage today is not looked upon in law as merely a divine institution made in heaven with the incident of indissolubility. Marriage and its dissolution, in modern judicial and legal thought, is reckoned as the incident of the human right of right to life. Marriage today is a social institution of partnership, friendship, mutual complementarity, love, affection, caring and sharing between two equal partners. Partners walk into the institution of marriage purely based on their consent and volition though after they enter such institution voluntarily, they are bound by the legal norms, ideas and procedure.

11. From a totally indissoluble institution, winds of change have swept the institution of marriage. Initially divorces on the ground of marital contumaciousness and non-existence of vitals necessary to make a marriage work were recognised by law. But later it was recognised that matrimony is after all a human institution - a bond created by exercise of the free act of will by the partners who are responsible; but fallible individuals who may err and blunder. With this emerged the concept of divorce by mutual consent. When the partners find it impossible to live out their lives with happiness and meaningfully, they were granted the option in law to walk out of such marriage subject to conditions by mutual consent. Today, most modern systems of jurisprudence recognise and accept the right of the spouses to get their marriage dissolved by mutual consent. This transformation in the concept of marriage and its dissolution and acceptance of those altered concepts by the legal systems did not take place one fine morning. Many a battle had to be fought socially and legally before the concept of divorce by mutual consent was accepted by the polity and approved by the Legislature. The Indian experiment shows that the Special Marriage Act, 1954 in Section 28 recognised the concept of dissolution of a...

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