SAUMYA ANN THOMAS Vs. UNION OF INDIA

JUDGEMENT

(1.) Is the stipulation of a period of two years as the minimum mandatory period of separate residence in S.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.

(2.) These questions arose for consideration before us in this writ petition as also in WP (C) No. 24219/08. Both were heard together. We have had the advantage of hearing Sri. G. Shrikumar, the learned counsel who was requested to render assistance as amicus curiae to this Court. We have also heard the arguments of Advocates M/s. T. S. Harikumar, Liji J. Vadakkedom, H. B. Shenoy and T. P. M. Ibrahim Khan, the learned Assistant Solicitor General of India. WP (C) No. 24219/08 is being disposed of by a separate judgment in view of certain vital difference in the facts scenario in that case. In fact we note that the bulk of arguments were advanced in WP (C) No. 24219/08. We must straightaway record our appreciation for the able and effective assistance rendered to us by Sri. G. Shrikumar who appeared as amicus curiae as also Advocate Sri. Ligi J. Vadakkedom who appeared for one of the parties.

(3.) To the vital and crucial facts first. The petitioner and the 2nd respondent are spouses. They are Christians by faith. Their marriage was solemnized on 06/04/08 in accordance with Christian religious rites. Differences and disagreements arose instantly after marriage and the spouses started separate residence with effect from 21/09/08. The petitioner herein filed an application for divorce on 05/12/08. That petition was numbered as OP 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 IA No. 536/09 with a prayer that the marital tie may be dissolved by a decree for divorce on mutual consent under S.10A of the Divorce Act. They filed IA No. 537/09 to dispense with the waiting period of six months under S.10A(2) of the Divorce Act. By the impugned order, the Court below rejected both the applications holding that the period of two years having not elapsed admittedly from the date of commencement of separate residence, this joint petition under S.10A of the Divorce Act is not maintainable.