2014 (2) TMI 1435 - HC - Indian Laws

Constitutional Validity of Section 10-A of the Indian Divorce Act, 1869 - period of 'two years' as the separation period before filing a petition for divorce by mutual consent is discriminatory or not - violation of of Articles 14 and 21 of the Constitution - expression 'two years' in Section 10-A of the Act to be read as 'one year' - HELD THAT - On perusal of the judgment of the Kerala High Court in Soumya Ann Thomas 2010 (2) TMI 1282 - KERALA HIGH COURT , as well as the judgment of the Apex Court in Kusum Ingots and Alloys Ltd. 2004 (4) TMI 342 - SUPREME COURT , what follows is that Section 10A(1) of the Act has been held to be unconstitutional being violative of Articles 14 and 21 of the Constitution. However, to save it from the vice of unconstitutionality, the expression of 'two years' has been read down to 'one year' in sub-section (1) of Section 10A of the Act. The Kerala High Court's pronouncement on the constitutionality of a provision of a Central Act would be applicable throughout India. This is made clear by Hon'ble Supreme Court in Kusum Ingots and Alloys Ltd., wherein it has been stated that an order passed on a Writ Petition questioning the constitutionality of a Parliamentary Act whether interim or final keeping in view the provisions contained in Clause (2) of Article 226 of the Constitution, would have effect throughout the territory of India subject of course to the applicability of the Act. This Writ Petition would not call for any specific orders with regard to holding constitutionality or otherwise of Sub-section (1) of Section 10A of the Act - Keeping in mind the pronouncement of the Division Bench of the Kerala High Court and reading the same in the context of Kusum Ingots and Alloys Ltd. the position of law with regard to sub-section (1) of Section 10A of the Act is now been made clear, particularly, insofar as State of Karnataka is concerned. Petition disposed off.

Summary

Issues:
Challenge to the constitutionality of Section 10-A of the Indian Divorce Act, 1869 regarding the separation period before filing a petition for divorce by mutual consent.

Analysis:
The Writ Petition was filed to challenge Section 10-A of the Indian Divorce Act, 1869, which prescribes a two-year separation period before filing a petition for divorce by mutual consent. The petitioner argued that this provision is discriminatory and violates Articles 14 and 21 of the Constitution. Reference was made to a Kerala High Court decision where the expression 'two years' was read down to 'one year' in a similar context. The petitioner contended that other marriage Acts have a one-year separation period, causing hardship to those under the Indian Divorce Act. The Union of India did not appeal the Kerala High Court decision, which was considered applicable nationwide.

Respondent No. 3, representing the Christian community, supported the two-year separation period, citing the unique nature of divorce in their community and the importance of allowing parties time for reconciliation. Respondent No. 4, represented by an amicus curiae, noted that the Protestant Church follows codified law on divorce. Respondent No. 5, a women's welfare organization, supported the petitioner's stance.

The Court, after considering the Kerala High Court judgment and the Supreme Court decision in Kusum Ingots and Alloys Ltd., declared Section 10-A(1) of the Act unconstitutional for violating Articles 14 and 21. To remedy this, the expression 'two years' was read down to 'one year'. The Court clarified that the Kerala High Court's decision applies nationwide, as per the Supreme Court's ruling. Consequently, the Writ Petition was disposed of without the need for specific orders on the constitutionality of Section 10-A(1) in Karnataka.