Divorce Act, 1869

Why In News?

• Recently, the Kerala High Court stated that the stipulation of the period of one year or more for filing a divorce petition by mutual consent under Section 10 A of the Divorce Act, 1869 violates fundamental rights and is unconstitutional

Highlights

• The court suggested to the Union government that there should be a uniform marriage code in India to promote the common welfare and good of spouses in matrimonial disputes
• The Section 10A Is discriminatory because of the reason that different communities in equal circumstances are given different treatment.
• The legislature cannot take away liberty without adequately safeguarding the interest of the individuals whose interests to seek remedy are affected even if such legislation intends to achieve laudable objectives.
• The right to a judicial remedy curtailed by statutory provisions, which is a violative of a fundamental right.
• The right to life encompasses judicial remedy as well.
• The one-year period is stipulated in 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.
• Earlier the Section 10A of the Indian Divorce Act mandated a 2-years waiting period for the application of divorce.
• The Kerala High Court itself, in Saumya Ann Thomas v. The Union of India & Ors. (2010) held that the stipulation of a period of two years as the minimum mandatory period under Section 10A was arbitrary and oppressive and the period of two years has to be read as one year.
• Article 8 of the Universal Declaration of Human Rights declares that everyone has the right to an effective remedy by the competent national Tribunals for acts violating fundamental rights granted by the constitution or by law.