SHIV KUMAR Vs. UNION OF INDIA

JUDGEMENT

(1.) 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 KerLT 869, 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, 2004 AIR(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.