2010 (2) TMI 1282 - HC - Indian Laws

Summary

Issues Involved:
1. Constitutionality of the two-year mandatory period of separate residence in Sec.10A(1) of the Divorce Act.
2. Whether the Family Court can waive the two-year period under Sec.10A(1) and the six-month period under Sec.10A(2).
3. Whether the stipulation offends Articles 14 and 21 of the Constitution.

Issue-Wise Detailed Analysis:

1. Constitutionality of the Two-Year Mandatory Period of Separate Residence in Sec.10A(1):
The court examined whether the stipulation of a two-year period for separate residence under Sec.10A(1) of the Divorce Act is right, just, and fair. The provision was compared with similar provisions in the Hindu Marriage Act, Parsi Marriage and Divorce Act, and the Special Marriage Act, which all stipulate a one-year period. The court concluded that the longer period for Christians is discriminatory and lacks a rational basis, thus violating the right to equality under Article 14 and the right to life under Article 21 of the Constitution. The court declared the stipulation unconstitutional and read it down to one year to avoid unconstitutionality.

2. Waiver of the Two-Year Period Under Sec.10A(1) and the Six-Month Period Under Sec.10A(2):
The court found no merit in the contention that the Family Court has the discretion to waive the two-year period under Sec.10A(1) or the six-month period under Sec.10A(2). The court emphasized that all four conditions under Sec.10A(1) must co-exist for an application for dissolution of marriage by mutual consent. Additionally, the court referred to its earlier decision in M. Krishna Preetha v. Dr. Jayan Moorkkanatt and the Supreme Court's decision in Anil Kumar Jain v. Maya Jain, which held that only the Supreme Court can dispense with the mandatory six-month period under Article 142 of the Constitution.

3. Stipulation Offending Articles 14 and 21 of the Constitution:
The court discussed the evolution of marriage and divorce laws, noting that the concept of divorce by mutual consent is now widely accepted. The court found that the longer period of separate residence for Christians is arbitrary, fanciful, and oppressive, thus offending the right to life under Article 21. The court emphasized that the stipulation forces spouses to remain in a dead marriage for an additional year, which is unreasonable and violates their right to pursue happiness. The court concluded that the stipulation of a longer period for Christians lacks a rational relationship to the objective of ensuring sufficient forethought before filing for divorce.

Conclusion:
The court allowed the writ petition, declared the two-year period in Sec.10A(1) unconstitutional, and read it down to one year. The court set aside the impugned order of the Family Court and granted a decree for divorce under Sec.10A of the Divorce Act, as read down. The marriage between the petitioner and the second respondent was dissolved.