The Kerala High Court has urged the Central government to seriously consider framing a uniform marriage code in India in order to promote the common welfare and good of spouses embroiled in matrimonial disputes
A Division Bench comprising Justice A Muhamed Mustaque and Justice Shoba Annamma Eapen made the observation while striking down Section 10A of the Indian Divorce Act, which stipulates a one-year waiting period for seeking divorce by mutual consent.
Stating that the law at present differentiates parties on the basis of their religion, when it comes to matrimonial relationships, the court said: “In a secular country, the legal paternalistic approach should be on the common good of the citizens rather than based on religion. The state’s concern must be to promote the welfare and good of its citizens, and religion has no place in identifying the common good.”
The court said that while the legislature’s competence to enact laws to regulate divorce could not be doubted, the “grounds of divorce on a fault basis” that have regulated divorce, in a practical sense, has resulted in hardships rather than in promoting welfare. It added that the impact of welfare objectives must reflect on the parties.
“Today, the Family Court has become another battleground, adding to the agony of parties seeking a divorce. This is obvious for the reason that the substantial legislation enacted prior to Family Courts Act was fashioned on a platform to adjudicate upon adversarial interests rather than to promote the common interest or good. The time has come for a change in the law applicable to the parties on a common uniform platform,” the bench observed.
“The Union government should seriously consider having a uniform marriage code in India to promote the common welfare and good of spouses in matrimonial disputes. The legislation on divorce must focus on the parties rather than the dispute itself. In matrimonial disputes, the law must aid parties to resolve the differences with the assistance of the Court. If a solution is not possible, the law must allow the Court to decide what is best for the parties. The procedure for seeking divorce shall not be to aggravate the bitterness by asking them to fight on preordained imaginary grounds,” the court said in its order on Friday.
The judgment came in a plea by two young Christians, challenging the Family Court order holding that one-year separation after the marriage is an essential condition to maintain a petition under Section 10A of the Divorce Act. They, who married this January, moved a joint petition for divorce under Section 10A of the Divorce Act before a Family Court. The Family Court dismissed the petition holding that one-year separation after the marriage is an essential condition to maintain a petition under the Section 10A of the Act.