Kerala High Court found that restriction of one years separation under Section 10A of the Indian Divorce Act, 1869, was unconstitutional . The court also directed the Central Government to examine the possibility of having a common marriage code in India .
Kochi (Kerala) (India) – December 10, 2018 – The Kerala High Court found that the restriction of one year's separation under Section 10A of the Indian Divorce Act, 1869, was unconstitutional and ruled this on Friday.The Court also directed the Central Government to examine the possibility of having a common marriage code in India, following the rejection of a joint petition by two parties challenging the one-year term established by the Act in Section 10A(1).This period would safeguard the parties from a potential danger as a result of the parties' decision for mutual separation.Though marriages are solemnized by two individuals, it is more commonly seen as a union for building the foundations for a prosperous family and society in India.According to the court, a number of laws have been promulgated and many exemptions have been enacted based on familial relationships.We would not have thought of interfering with a minimum duration when it comes with a noble goal behind it.However, it was pointed out that no provision is made by statute in the best-case scenario for a spouse to petition the Courts to remove the minimum period, according to the court.The Court further said that the legislature should in their discretion recommend that some modifications be made to ease the rigor of the minimum period for a petitioner to respond to a petition within the waiting period of separation in other laws.In cases of exceptional difficulties to the parties, this basically guarantees that a sensible judicial remedy is offered. According to the court, the legislature in other laws would not leave the Christian community in disarray because of the need for relaxation and to remedy unavoidable circumstances by means of legal recourse.The men, however, are not given the same right to separate the marriage.Any intrusion by the state into marriage is based on the assumption that men are ineligible to make a decision for themselves, and that the state is able to make decisions by taking note of men's welfare, needs, interests, etc.From a liberal perspective, any intrusion on a person's right to make a decision is considered an encroachment on personal liberties. However, under the bill, both sides would be able to separate themselves.Even if the bill seeks to achieve laudable objectives, the legislator cannot take away liberty without adequately safeguarding the interests of those who are affected, the court urged the Family Court to number the petition and declare divorce within two weeks, and to grant a decree of divorce without insisting on the parties' recompense, according to the petition.