Speaking on the legislature’s possible intent in stipulating such a waiting period, the Court said that it was intended as a safeguard against impulsive decisions that may permeate the decision by stipulating a gestation period before presenting a petition for divorce on mutual consent.
“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 legislature, therefore, decided that a minimum period of separation must precede before presentation of a petition for divorce on the ground of mutual consent,” the Court said.
However, even though the harm caused to others may have influenced the legislature, the Court noted that no remedy is provided by statute in exceptional and depraved conditions for a spouse to approach the courts to get rid of the minimum period.
“The denial of such a remedy to Christians bothers us. The Court must circumvent from entering into the domain of legislature by providing measures of relaxation….Individual liberty when curtailed, the Court has to examine whether the law was passed to further any common good or to protect the larger interest of the parties,” the Court said.
In the context of the present case, the Court opined that the collective good intended cannot be used as a reason to trample upon the rights of individuals to depart if his or her need to depart is not relatable to the collective good.
Accordingly it struck down Section 10A.
It also directed the Family Court to consider and dispose of the plea by petitioners for divorce within a period of two weeks, without insisting on their personal appearance.
Advocates Sikha G Nair, Sandhya K Nair, Anjana Suresh E and Beena N Kartha appeared for the petitioners while the respondents were represented by Deputy Solicitor General Manu S.
Advocates Sandhya Raju and R Leela served as Amicus Curiae.
Source: Barandbench
