Kerala High Court urges Central government to frame uniform marriage code applicable to all communities

The Kerala High Court on Friday called upon the Central government to seriously consider framing a uniform marriage code in India to promote the common welfare and good of spouses embroiled in matrimonial disputes [Anup Disalva v Union of India]..A bench comprising Justices A Muhamed Mustaque and Shoba Annamma Eapen made the observation while striking down as unconstitutional Section 10A of the Indian Divorce Act which stipulates a one-year waiting period seeking divorce by mutual consent.“In matrimonial disputes, the law must aid parties to resolve the differences with the assistance of the Court,” opined the bench..It was noted that while the fault theory had regulated divorce, but in a practical sense it has resulted in hardships instead of promoting welfare.“Today, the Family Court has become another battleground, adding to the agonies of parties seeking a divorce.”.Therefore, the Court opined that the time has come to change the law. “In a secular country, the legal paternalistic approach should be on the common good of the citizens rather than based on religion,” said the judgement while underscoring that religion has no place in identifying common good..In light of these observations, the Court threw its weight behind a uniform code that focuses on the parties rather than the dispute itself. It was emphasised that procedure for divorce should not aggravate the bitterness by asking couples to fight on preordained imaginary grounds..The Court, therefore, held that the mandatory waiting period affects the rights to liberty of citizens. "We are of the firm view that when liberty is taken away to act according to one's will, without any procedure to safeguard the fallout of such restrictions, the law will become oppressive.".The judgment came in a plea by two young Christians who got married as per religious rites in January this year. They soon realised their marriage was a mistake, did not consummate it, and moved a joint petition for divorce under Section 10A of the Divorce Act before a Family Court by May.The Family Court rejected the petition holding that one-year separation after the marriage is an essential condition to maintain a petition under Section 10A of the Act.Challenging this order, both parties approached the High Court. On realising that the bar was created by a statute, the couple moved a writ petition to declare that provision unconstitutional..Advocates Sikha G Nair, Sandhya K Nair, Anjana Suresh E, and Beena N Kartha appeared for the petitioners while the respondents were represented by ASG Manu S. Advocates Sandhya Raju and R Leela served as Amicus Curiae..[Read Judgment]