The Kerala High Court has ruled that the requirement of “one year of separation” or more before filing a divorce petition by mutual consent under the Divorce Act is unconstitutional, citing violations of fundamental rights.

The decision was made by a division bench of the high court, comprising of Justice A Muhamed Mustaque and Justice Shoba Annamma Eapen in response to a petition filed by a young couple who got married according to Christian customs last year.

The couple filed a joint petition for divorce with the Family Court in May under Section 10A of the Divorce Act. The petition was denied by the Family Court, which stated that a one-year separation following the marriage is required to maintain a petition under Section 10A of the Act.

The parties then filed an appeal with the Kerala High Court, challenging the order. After that , the couple filed a writ petition to declare Section 10A(1) of the Act unconstitutional.

The court observed that if the parties are not given the option to highlight the hardships and exceptional hardships they may encounter during the waiting period, the mandate of Section 10A(1) will become oppressive.

The court observed, “If the right to a judicial remedy is curtailed by statutory provisions, the court will have to strike them down as they are violative of a fundamental right. The right to life encompasses judicial remedy as well.”

The high court also ordered the family court to number the divorce petition based on mutual consent, rule it within two weeks, and grant a divorce decree without requiring the parties to appear in court again.

The court also stated in the same decision that the Union Government should seriously consider instituting a uniform marriage code in India in order to promote the common welfare and good of spouses in matrimonial disputes.