The right to seek a divorce by mutual consent is provided under the Hindu Marriage Act, 1955, the Parsi Marriage and Divorce Act, 1988 and even the Special Marriage Act, 1954. All these statutes provide a mandatory one year period of separation of the husband and wife prior to filing of a petition of divorce by mutual consent. The Indian Divorce Act however, which governs divorces for christians, requires under Section 10A, a period of two years mandatory separation prior to the filing for divorce by mutual consent.
In 2012, a Bangalore based advocate, Mr. Shiv Kumar challenged the constitutionality of Section 10A of the Indian Divorce Act, 1869 alleging that this provision amounted to discrimination based on religion and violated the constitutional guarantee of equality under Article 14. In addition, by forcing Christian couples into a oppressive living situation of a loveless marriage for an extra year, it also offended their right to live with dignity under Article 21. The petition also argued that this requirement of Section 10A also violated the goal of bringing in a uniform civil code as enshrined in Article 44 of the Constitution. Further, the Kerala High Court had in Soumya Ann Thomas vs Union of India ILR 2010 (1) Ker 804 had already read down Section 10A to mean that the expression ‘two years’ would be read as ‘one year’.
The Centre for Law and Policy Research (CLPR) represented Vimochana, a women’s rights organization that works on issues of violence against women and gender equality to implead in this petition as a party. Vimochana was impleaded as a respondent and supported the petition and argued additionally that in cases where women are facing domestic violence and harassment at the hands of the husband, in many instances they opt for a quick separation. In such cases, having to wait for a period of two years can be extremely onerous and even dangerous as women would have to continue in violent relationships. The following additional arguments were made on behalf of Vimochana:
a) Legislative Debates: When the Indian Divorce Act, 1869 was amended in 2001 to bring in Section 10A, legislative debates show that there was great opposed the imposition of the two year separation condition especially when a one year period had been mandated in all other personal laws.
b) No Alimony: Further, it was also argued that this provision created an arbitrary and oppressive burden on Christian women financially since during the 2 year separation period she would not be provided with any alimony or maintenance amount. This would amount to considerable hardship for married Christian women.
c) History of Discrimination: The Indian Divorce Act, 1869 had a history of discrimination against women in as much it contained provisions which denied the right to dissolution of marriage on the grounds of cruelty and desertion by having to prove adultery along with it. Certain provisions of Section 10 which provided for this were struck down by the High Courts of Kerala in Ammini E.J and Anr, V. Union of India & Others (1995) (1) KLJ 624 and the High Court of Andhra Pradesh inYouth Welfare Federation, represented by its Chairman, K.J Prasad v. Union of India 1997 (1) APLJ 195.
On 3rd February, 2014, the Division Bench of the Karnataka High Court passed an order allowing the petition. It held that the decision of the Kerala High Court’s pronouncement in Soumya Ann Thomas vs Union of India ILR 2010 (1) Ker 804, that the expression of ‘two years’ in Section 10A of the Indian Divorce Act 1869 would be read down to ‘one year’ would be applicable throughout the country. It relied on the decision of the Supreme Court in Kusum Ingots and Alloys Ltd vs Union of India and Anr AIR 2004 SC 2321, where it was held that an order passed on a writ petition questioning the constitutionality of a parliamentary Act would be enforceable throughout the territory of India as per Article 226(2) of the Constitution of India and thus the reading down of Section 10A of the Indian Divorce Act, 1869 was made applicable in Karnataka as well.