This post is written by Aanchal Chaurasia. She is a 4th year Law student pursuing the 5th year of B.L.S./LL.B. from Rizvi Law College in Mumbai University.
- TITLE OF THE CASE: Saumya Ann Thomas Vs. The Union of India.[1]
- CITATION: (2010) ILR 2010 (1) Ker 804 (India).
- COURT: HIGH COURT OF INDIA.
- BENCH: The Hon’ble MR. Justice R.BASANT and the Hon’ble MRS. Justice M.C.HARI RANI.
- DATE OF JUDGMENT: February 25th, 2010.
- PETITIONER: SAUMYA ANN THOMAS.
- RESPONDENT: THE UNION OF INDIA.
- BRIEF FACTS:
The petitioner and the 2nd respondent are spouses. They are Christians by faith. Their marriage was solemnized on 6/4/08 under Christian religious rites. Differences and disagreements arose instantly after marriage and the spouses started separate residences with effect from 21/9/08. The petitioner herein applied for divorce on 5/12/08. That petition was numbered as O.P.No.1313/08. During the pendency of that petition, the parties appear to have settled all their outstanding disputes. They entered into Ext.P1 agreement. They consequently filed I.A.No.536/09 with a prayer that the marital tie may be dissolved by a decree for divorce on mutual consent under Sec.10A of the Divorce Act. They filed I.A.No.537/09 to dispense with the waiting period of six months under Sec10A(2) of the Divorce Act. By the impugned order, the court below rejected both the applications holding that the period of two years has not elapsed admittedly from the date of commencement of separate residence, this joint petition under Sec.10A of the Divorce Act is not maintainable.
- ISSUED:
- Is the stipulation of a period of two years as the minimum mandatory period of separate residence in Sec.10A(1) of the Divorce Act right, just and fair? Is it arbitrary, fanciful, and oppressive?
- Does that stipulation offend Art.14 and/or Art.21 of the Constitution?
- Does that stipulation deserve to be read down to " one year" to save the provision from the vice of unconstitutionality?
These interesting contentions are raised for our consideration in this writ petition.
- DIRECTION BY THE SUPREME COURT:
- in the result:
- This writ petition is allowed.
- The stipulation in Sec.10A (1) of the Divorce Act that the spouses must “have been living separately for two years or more” is declared to be unconstitutional as the stipulation of the period of “two years” therein violates the fundamental rights to equality and the right to life under Arts.14 and 21 of the Constitution.
- To save the provision and to avoid the vice of unconstitutionality the period of “two years” stipulated in Sec.10A of the Divorce Act is read down to a period of “one year.”
- The common impugned order passed by the court below is set aside. It is found that the petitioners are entitled to a decree for divorce under Sec.10A of the Divorce Act.
- Invoking the powers of the Family Court under Sec.10A of the Divorce Act as so read down, the marriage between the petitioner and the second respondent solemnized on 6/4/08 is hereby dissolved under Sec.10A of the Divorce Act.
[1] Saumya Ann Thomas vs The Union of India, (2010), ILR 2010 (1) Ker 804, (India).