SC agrees to examine Christian divorce law

NEW DELHI: : Can mandatory period of living separately be of two years for Christian couples to seek divorce by mutual consent when for other communities the period is one year?
The Supreme Court on Monday agreed to examine the validity of a 146-year old provision which said that divorce cannot be granted to Christian couples on mutual consent if they were not living separately for at least two years.
A bench of Justices Vikramajit Sen and Abhay Manohar Sapre issued notice to Centre on a PIL seeking quashing of Section 10 A(1) of the Divorce Act, 1869 which governs the law of divorce between members of the Christian community.
Advocate Manya Kumar, appearing for petitioner Albert Anthony, told the bench that with regard to other communities the period of mandatory separation provisions for divorce by mutual consent is just one year and pleaded the court to fix the same period for Christian community.
“Provisions for divorce by mutual consent in other statutes such as Section 28 of The Special Marriage Act, 1954, Section 13-B of The Hindu Marriage Act, 1955, and Section 32 B of The Parsi Marriage and Divorce Act, 1936 require and prescribe statutory period of separation as one year. Consequently, it acts as oppression to the members of Christian community intending to seek divorce by mutual consent,” the petition said.
“Only on the basis of religion there exists a hostile discrimination as only the Christians, who are governed by the provisions 10 A (1) of the Divorce Act, require to observe separation for a period of two years before applying for divorce by mutual consent. However, members of other communities are required to observe separation for a period of one year only before applying for divorce by mutual consent under similar provisions in other statutes,” it said.
“A specification that prescribes different separation periods for different communities to obtain safe relief is wholly discriminatory, arbitrary and unsustainable. It is violative of the fundamental rights of people seeking relief of divorce by mutual consent under the Divorce Act,” the petition said.
The petitioner pleaded the court to declare the portion of Section 10 A (1) of the Divorce Act, 2001 that prescribed two years as the separation period for filing a petition for divorce by mutual consent as discriminatory and unconstitutional and read down the minimum mandatory period of separation from a period of two years to one year.