Friday, February 28, 2014

Christians must wait one year to file for divorce

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  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."

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