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Framing of a uniform marriage code applicable to all communities, Kerala High Court to Centre
Kerala's High Court in the recent case of Anup Disalva vs. Union of India, O.P.(FC). No.398/2022 & W.P.(C). No.28317/2022 gave serious consideration to the Central government to draft a uniform marriage law in India to promote the joint welfare of spouses involved in marital disputes.
A two-judge bench made up of Justices Shoba Annamma Eapen and A Muhamed Mustaque, ruled that section 10A of the Indian Divorce Code, which imposes a one-year waiting period for an amicable or mutual divorce, was unconstitutional. The court observed that in marital disputes, the law must help parties resolve their differences within the judicial walls.
The verdict was handed down on a plea by two young Christians who married according to a religious ceremony in January of this year. Soon after their marriage, they had a realization that they do not want to carry forward with it and that their marriage was just a mistake. A joint petition for divorce under Section 10A of the Indian Divorce Act was filed with the Family Court.
While the fallacy theory has solved divorce, it has been found that it has caused more trouble than it promotes happiness. Nowadays, family courts have become yet another battlefield, adding to the anguish of parties seeking a divorce."
Therefore, the court felt it was time to change the law. The ruling stated that "in a secular country, the legal patriarchal approach should be based on the common interests of citizens, not on religion", noting that religion is not the place to identify common interests.
In such facts and circumstances, courts have advocated a uniform law that puts the parties, not the dispute, at the centre. It was emphasized that divorce proceedings should not be made bitter by asking couples to fight for pre-determined fictitious reasons.
The court, therefore, ruled that the mandatory waiting period violates civil liberties. The law becomes oppressive when people are deprived of their freedom to act according to their own will without proper procedures to protect against the consequences of such restrictions.
The Family Court denied the Petition, arguing that a one-year separation after marriage was a requirement to maintain the application of Section 10A of the Act.
Both parties appealed this decision and went to the High Court. Finding that the bar was created by law, the couple filed a writ petition to render the provision unconstitutional.
Refer to the following case order for more details- Anup Disalva vs. Union of India
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