Having heard learned counsel and on perusal of the judgment of the Kerala High Court in Soumya Ann Thomas, as well as the judgment of the Apex Court in Kusum Ingots and Alloys Ltd., what follows is that Section 10A(1) of the Act has been held to be unconstitutional being violative of Articles 14 and 21 of the Constitution. However, to save it from the vice of unconstitutionality, the expression of 'two years' has been read down to 'one year' in sub-section (1) of Section 10A of the Act. The Kerala High Court's pronouncement on the constitutionality of a provision of a Central Act would be applicable throughout India. This is made clear by Hon'ble Supreme Court in Kusum Ingots and Alloys Ltd., wherein it has been stated that an order passed on a Writ Petition questioning the constitutionality of a Parliamentary Act whether interim or final keeping in view the
provisions contained in Clause (2) of Article 226 of the Constitution, would have effect throughout the territory of India subject of course to the applicability of the Act.
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 3RD DAY OF FEBRUARY 2014
PRESENT
THE HON' BLE MR.D.H.WAGHELA, CHIEF JUSTICE
AND
THE HON' BLE MRS.JUSTICE B.V.NAGARATHNA
WRIT PETITON NO.13112/2012 (GM-RES-PIL)
Mr.SHIV KUMAR Vs UNION OF INDIA
Citation: AIR 2014 karnataka 73, MANU/KA/0540/2014
This Writ Petition has been filed in public interest to seek
a declaration that Section 10-A of the Indian Divorce Act,
1869 (for short ‘the Act’) prescribing a period of ‘two years’ as
the separation period before filing a petition for divorce by
mutual consent is discriminatory and violative of Articles 14
and 21 of the Constitution.
An alternative prayer is also
sought by requesting the Court to read down the expression
‘two years’ in Section 10-A of the Act as ‘one year’.
2.
We have heard learned counsel for the petitioner and
learned counsel for the respondents.
3.
Learned counsel for the petitioner has brought to our
notice a decision of a Division Bench of the Kerala High Court
in Saumya Ann Thomas vs. The Union of India & others
[2010 (1) KLT 869] ; ILR 2010 (1) Kerala 805, to
contend that Section 10A(1) of the Act has been read down
and the expression ‘two years’ is to be read as ‘one year’. She
has taken the contention that the expression ‘two years’ was
in violation of Articles 14 and 21 of the Constitution as with
regard to other Acts namely, Hindu Marriage Act, 1955, Parsi
Marriage and Divorce Act, 1936, Special Marriage Act, 1954,
all of which have only ‘one year’ period of separation prior to
filing of the petition for divorce by mutual consent.
But under
the Act in question, the period of two years is causing
hardship and adverse consequences on persons to whom the
said Act is applicable.
She also brought to our notice the fact
that the Kerala High Court having held that the period of ‘two
years’ in Section 10A(1) being violative of Articles 14 and 21
of the Constitution and must be read down as a period of ‘one
year’, is a judgment which is applicable throughout India. In
support of this proposition, she placed reliance on the
judgment of the Hon’ble Supreme Court in Kusum Ingots
and Alloys Ltd., vs. Union of India and another (AIR
2004 SC 2321). It is an admitted fact that the Union of India
has not filed any appeal against the order of the Division
Bench of Kerala High Court.
4.
Respondent No.3 who is represented by a learned
counsel has, however, stated that the concept of divorce is
alien to the Christian community but having regard to the
codified law applicable throughout India, respondent No.3
would support two years of separation keeping in mind the
locus poenitentiae of the parties, rather than making it one
year.
5.
Respondent No.4 is represented by amicus curiae who
has stated that it represents the Protestant Church which
follow the codified law in the matter of divorce.
6.
Respondent
No.5
which
is
a
non-governmental
organization working for the welfare of women has supported
the petitioner.
7.
Having heard learned counsel and on perusal of the
judgment of the Kerala High Court in Soumya Ann Thomas,
as well as the judgment of the Apex Court in Kusum Ingots
and Alloys Ltd., what follows is that Section 10A(1) of the
Act has been held to be unconstitutional being violative of
Articles 14 and 21 of the Constitution.
However, to save it
from the vice of unconstitutionality, the expression of ‘two
years’ has been read down to ‘one year’
Section
10A
of
the
Act.
The
in sub-section (1) of
Kerala
High
Court’s
pronouncement on the constitutionality of a provision of a
Central Act would be applicable throughout India.
This is
made clear by Hon’ble Supreme Court in Kusum Ingots and
Alloys Ltd., wherein it has been stated that an order passed
on a Writ Petition questioning the constitutionality of a
Parliamentary Act whether interim or final keeping in view the
provisions contained in Clause (2) of Article 226 of the
Constitution, would have effect throughout the territory of
India subject of course to the applicability of the Act. In that
view of the matter, this Writ Petition would not call for any
specific orders with regard to holding constitutionality or
otherwise of
sub-section(1) of Section 10A of the Act.
Keeping in mind the pronouncement of the Division Bench of
the Kerala High Court and reading the same in the context of
Kusum Ingots and Alloys Ltd,
the position of law with
regard to sub-section (1) of Section 10A of the Act is now
been made clear, particularly, insofar as State of Karnataka is
concerned.
8.
With the aforesaid observations, the Writ Petition is
disposed of.
Sd/-
CHIEF JUSTICE
Sd/-
JUDGE
mv
No comments:
Post a Comment