The Supreme Court has sought a response from the Centre, on the question of validity of Section 10 A(1) of the Divorce Act, 1869 according to which a Christian couple has to live separately for a period of two years to seek divorce by mutual consent. This period is just one year for couples from other communities.
While hearing the Petition filed by Mr. Albert Anthony, the bench comprising of Justice Vikramajit Sen and A.M. Sapre observed that the difference in criteria for a Christian couple "does not make sense" and therefore agreed to examine the validity of the provision which is 146 year old.
Advocate Rajeev Sharma, representing the Petitioner, told the Court that Kerala high court read down the provision by reducing the time period to one year but Karnataka HC gave a divergent opinion.
The Petition stated, "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.”
It further 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.”
"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," it added.
The Bench then questioned the Centre as to why no remedial measures were undertaken in view of the divergent opinions of the High Courts.
The matter has been scheduled for hearing after two weeks.