The Kerala High Court has suggested that the Central government should seriously consider framing a uniform marriage code applicable to all communities.

Observing that the law differentiates parties based on religion regarding welfare in a marital relationship, the high court said in a secular country, the legal paternalistic approach should be on the common good of the citizens rather than based on religion.


No one-year waiting period for divorce

“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,” it said.

The division bench of the high court comprising Justice A Muhamed Mustaque and Justice Shoba Annamma Eapen made the observations while hearing a plea filed by a Christian couple challenging the fixation of the minimum period of separation of one year under Section 10A of the Divorce Act, 1869 as being violative of fundamental rights.


Addressing the question of whether spouses have the right to separate their marriage mutually before the aura of the marriage period of one-year vanishes, the court held that the fixation of the minimum period of separation of one year as stipulated under Section 10A is violative of the fundamental right and “accordingly, strike it down”.

What Kerala HC said

“W.P.(C).No.28317/2022 is allowed declaring that the stipulation of the one-year period or more for the purpose of filing a divorce petition by mutual consent under Section 10A is violative of fundamental right and is declared unconstitutional,” it said.

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The high court also directed the family court to dispose of the divorce plea filed by the couple within two weeks and grant a decree of divorce without insisting on the further presence of parties.


State knows what is best for the couple  

It observed that the legislature’s competence to enact laws to regulate divorce could not be doubted as it has an avowed intention to uphold the common good and welfare of the people and society.

“The state knows what is best for the couple and the community. The grounds of divorce on a fault basis have regulated divorce but in a practical sense, it has resulted in hardships rather than in promoting welfare. The impact of welfare objectives must reflect on the parties,” the court said.

SC on uniform marriageable age

In a related development, the Supreme Court on Friday sought response from the Centre to a petition by the National Commission for Women (NCW) seeking enforcement of uniform marriageable age of 18 years for women and men of all communities and making the marriage of minor Muslim girls a punishable offence under the Prohibition of Child Marriage Act and Protection of Children from Sexual Offences Act.


Private member’s bill on Uniform Civil Code

Incidentally, on Friday, BJP MP Kirodi Lal Meena introduced a private member’s bill seeking a panel to prepare a Uniform Civil Code in the Rajya Sabha.

‘The Uniform Civil Code in India Bill, 2020’, which envisages a collection of laws to protect the personal rights of all citizens without considering religion, was introduced in the Upper House amid protests from opposition parties.

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