Recently, the Kerala High Court issued a statement indicating that the prerequisite of a one-year period or more for filing a divorce petition by mutual consent under Section 10A of the Divorce Act, 1869 infringes upon fundamental rights and is unconstitutional. The court advised the Union Government to implement a uniform marriage code within India to enhance the welfare and well-being of spouses caught in marital disputes.
The Reason behind the Court’s Decision to Strike Down Section 10A of the Indian Divorce Act, 1869
The court’s decision was spurred by the discriminatory nature of Section 10A. This section provides different treatments to different communities under similar circumstances. The court argued that the law cannot suppress individuals’ freedom without protecting the interests of those whose right to seek legal remedy might be hampered by such laws, even if the objective of the law was commendable. It further pointed out that the right to judicial remedy being curtailed by statutory provisions was a direct violation of a fundamental right, and that the right to life embraces judicial remedies as well.
The Origins of Section 10A of the Indian Divorce Act, 1869
Section 10A of the Indian Divorce Act stipulates a one-year separation period for filing for divorce, a requirement that originated from Section 28(1) of the Special Marriage Act, Section 13B (1) of the Hindu Marriage Act, and Section 32B (1) of the Parsi Marriage and Divorce Act. Initially, the section mandated a two-year waiting period before applying for a divorce. However, in a case in 2010—Saumya Ann Thomas v. The Union of India & Ors—the Kerala High Court deemed this two-year period to be arbitrary and oppressive, suggesting that it be read as one year instead.
Article 8 of the Universal Declaration of Human Rights
According to Article 8 of the Universal Declaration of Human Rights, every individual is entitled to an efficient legal remedy from competent national tribunals for acts that breach fundamental rights granted by the constitution or by the law.
What is the Universal Declaration of Human Rights?
The Universal Declaration of Human Rights (UDHR) is a landmark document in the history of human rights. It was unveiled by the United Nations General Assembly in Paris in December 1948 and is celebrated globally on 10th December, also known as Human Rights Day. The UDHR asserts the protection of fundamental human rights globally without any distinction concerning race, color, sex, language, religion, political or other opinions, national or social origin, property, birth, or other status.
The Motivation behind the Imposition of a One-Year Period for Divorce Applications
The primary reason for enforcing a one-year period before applying for a divorce is to allow sufficient time for couples to understand each other and their respective family cultures. However, the Kerala High Court acknowledges that not all matrimonial cases yield the same outcomes, suggesting the need for alternative measures to escape detrimental marital relationships. Ultimately, the court aims to uphold the right to a dignified life for spouses struggling with marital hardships.