Kerala HC: It Is Not Necessary For Husband And Wife to Live Separately For A Year of Divorce

In a landmark judgement, the Kerala High Court on Friday has struck down Section 10A of the Divorce Act, 1869, which mandated the husband and wife to live separately for at least one year before applying for divorce by mutual consent. The court says that waiting for one year to file a petition for divorce by mutual consent is a violation of the fundamental right. Along with this, the court declared this section (Section 10A of the Divorce Act, 1869) unconstitutional.

Division Bench of Justice A Muhamed Mustaque and Justice Shoba Annamma Eapen in its judgement said  “the Legislature had imposed such a period in its wisdom, in order to act as a safeguard against impulsive decisions that may be taken by parties to separate and rid themselves of the marriage.  This period will insulate possible peril that may ensue for the parties as a follow-up of the decision for mutual separation.”
 
“In the Indian social context, though marriages are solemnized by two individuals, it is seen more as a union for laying the foundation for a strong family and society. Many laws have been made and many rights have been created based on familial relationships,” the court ruled.
  
The Kerala high court was hearing a petition against the Family Court, Ernakulam in which court had dismissed the joint petition filed by both which was within one year after the marriage as stipulated under Section 10A of the Act.
  

The Kerala High Court also directed to the Family Court to dispose of the case within 2 weeks and also grant a decree of divorce without insisting on the further presence of parties.