The separation period required for a Christian couple to file a
petition for dissolution of marriage by mutual consent will be one year,
the Karnataka high court ruled on Monday.
The court disposed of public interest litigation relating to Section
10A (1) of the Divorce Act, 1869, (applicable to Christians) in the
light of a 2010 verdict of a division bench of the Kerala high court.
The Kerala court had read down the ‘two years’ separation period in
Section 10 A to ‘one year’ so as to bring the same in conformity with
Section 13B of the Hindu Marriage Act, Section 32B of the Parsi Marriage
and Divorce Act and Section 28 of the Special Marriage Act.
A division bench headed by Chief Justice DH Waghela noted that the
Kerala court judgment has become the law of land in the light of an apex
court judgment which says that any verdict of a high court holds good
for the entire country unless the same is challenged in the apex court.
The bench also noted that the Centre, which was a respondent before the Kerala court, did not challenge the said judgment.
During the hearing, counsel for the Archdiocese of Bangalore said
that the dissolution of a Christian marriage by divorce by mutual
consent or by decree of court is not at all recognized by the Roman
Catholic Church (RCC).
“But realizing that a ‘marriage’ could be brought about with
underlying defects or shortcomings or other disqualification, the RCC
has procedure for annulment of marriage. Annulment by church is the only
way of termination of marriage recognized by the RCC,” he said.
The PIL was filed by Shivakumar, who challenged the norm under
Section 10A of the Divorce act prescribing a two-year period prior to
filling of petition for divorce by Christians.
The petitioner contended that a two-year separation period is
arbitrary as the Special Marriages Act, the Hindu Marriage Act and the
Parsi Marriage Act have a one-year separation period clause.
The Kerala high court had said: “Having considered all the relevant
circumstances, we are of the opinion that the stipulation of a higher
period of two years of mandatory minimum separate residence for those to
whom the Divorce Act applies, in contra-distinction to those similarly
placed to whom Sec 13B of the Hindu Marriage Act, Sec 32B of the Parsi
Marriage and Divorce Act and Sec 28 of the Special Marriage Act would
apply, offends the mandate of equality and right to life under Arts14
and 21 of the Constitution.”
Click here for source
