One-year filing period for divorce petitions by mutual consent violates fundamental rights Kerala HC

Kerala High Court's division bench held on Friday that Section 10 A of the Divorce Act, 1869, stipulating a one-year filing period for divorce petitions by mutual consent violates fundamental rights.

According to Justices A Muhamed Mustaque and Shoba Annamma Eapen, the mandatory waiting period violates citizens' rights to liberty, particularly Christian citizens covered by the Indian Divorce Act.

Earlier this year, a young couple who married according to Christian customs filed a petition before the court. In May, after realizing their mistake, they filed a joint petition for divorce with the Family Court under Section 10A of the Divorce Act. Family Court denied the petition, stating that a separation of one year from the marriage is required to maintain a petition under Section 10A.

The parties then appealed the order to the Kerala High Court. Having recognized that the bar was created by statute, the couple filed a writ petition to declare Section 10A(1) unconstitutional. As the court noted, Section 10A(1) will become oppressive if the parties are not allowed to highlight hardships and exceptional hardships they may face during the waiting period.

The court ordered that the family court number the divorce petition based on mutual consent, render its decision within two weeks, and grant the divorce decree without requiring the parties to appear in court again. As part of that decision, the court recommended that the Union Government seriously consider instituting a uniform marriage code in India to promote the welfare and good of spouses.