Whether pronouncement on constitutionality of a provision of a Central Act by High court would be applicable throughout India?

 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

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