Law or Body Struck Down as Unconstitutional Archives

A division Bench of Kerala High Court held as follows,

From Para 4,

4. A Division Bench of this Court in Saumya Ann Thomas v. The Union of India and others [MANU/KE/0255/2010] held that the stipulation of a period of two years as the minimum mandatory period under Section 10A is arbitrary and oppressive and the period of two years has to be read as one year. This was taking note of the one year period stipulated in Section 28(1) of the Special Marriage Act, Section 13B(1) of the Hindu Marriage Act and Section 32B(1) of the Parsi Marriage and Divorce Act.

From Paras 6-7,

6. Divorce by mutual consent reflects the will of the parties to separate and get rid of the marriage. The legislature has put safeguards against impulsive decisions that may permeate such a decision by stipulating a gestation period before presenting a petition for divorce on mutual consent. This period will insulate possible peril that may ensue for the parties as a follow-up of the decision for mutual separation. In the Indian social context, though marriages are solemnized by two individuals, it is seen more as a union for laying the foundation for a strong family and society. Many laws have been made and many rights have been created based on familial relationships. The legislature, therefore, decided that a minimum period of separation must precede before presentation of a petition for divorce on the ground of mutual consent.
7. The problem presented in this case is when the waiting period itself would cause hardship to the parties. Can the law command parties to sit at the
fence and suffer the agony? The legislature in its wisdom contemplated possible repercussions of such fixation of minimum period that would result in
hardships to spouses and accordingly allowed the Courts to entertain a petition within the minimum period in exceptional cases. This is how Section
29 of the Special Marriage Act and Section 14 of the Hindu Marriage Act, enabled the Courts to entertain the petition to be presented before one year had lapsed from the date of marriage. There is no corresponding provision in the Divorce Act for the Court to permit the dissolution of marriage by mutual consent until the mandatory period of one year has lapsed from the date of separation. The constitutional validity of the mandatory period is, therefore, questioned in the writ petition filed by the parties. This Court in Saumya’s case (supra) had no occasion to advert to the validity of the minimum mandatory period by which spouses are denied the remedy of approaching the Court before the lapse of one year from the date of marriage or from the date of separation.
The above reasoning of the Court would clearly show that the decision rendered and the conclusion arrived at was on a premise that the mandatory
minimum residence period of two years for Christians is discriminatory as there is no such prescription of two years under the Hindu Marriage Act and the Special Marriage Act etc. This Court, however, considers the question in these cases on a different ground; whether in the absence of any provisions allowing the parties to a marriage to move the Court before the lapse of one year from the date of marriage or the date of separation. Can the provisions stand the test of constitutional scrutiny? The plea of arbitrariness would arise in this context of denial of judicial remedy to approach the Court before the lapse of one year from the date of marriage or separation.

From Para 11,

11. We hold that the fixation of the minimum period of separation of one year as stipulated under Section 10A is violative of the fundamental right and accordingly, strike it down.

Anup Disalva and Anr Vs Union of India on 09 Dec 2022

Index of Divorce Judgments is here.

A division bench of Madhya Pradesh High Court at Jabalpur, held as follows,

From Para 19, (Presumption of Legislature is correct)

19. The Hon’ble Supreme Court in the case of J.K. Cotton Spinning and Weaving Mills Co. Ltd. vs. State of U.P., reported in 1960 SCC OnLine SC 16 has held that in the interpretation of the statutes the Court always presumes that the legislature inserted every part thereof for a purpose and the legislative intention is that every part of the statute should have effect. Therefore, a provision of a statute cannot be used to defeat another unless it is impossible to effect reconciliation between them. Hence, the interpretation which involves conflict, must be avoided.

From Para 20,

20. The Hon’ble Supreme Court in the case of Aphali Pharmaceuticals Ltd. v. State of Maharashtra, (1989) 4 SCC 378 has explained the principles of interpretation of statutes. It has been held as follows:
“39. …….The best interpretation is made from the context, ‘Injustum est nisi tota lege inspecta, de una aliqua ejus particula proposita judicare vel respondere’. It is unjust to decide or respond as to any particular part of a law without examining the whole of the law. ‘Interpretare et concordare leges legibus est optimus interpretandi modus’. To interpret and in such a way as to harmonise laws with laws, is the best mode of interpretation…….”

From Para 21,

21. In the case of Grasim Industries Ltd. v. Collector of Customs, reported in (2002) 4 SCC 297, the Hon’ble Supreme Court held as follows:
“10. ………Where the words are clear and there is no obscurity, and there is no ambiguity and the intention of the legislature is clearly conveyed, there is no scope for the court to take upon itself the task of amending or alternating (sic altering) the statutory provisions……”

Note: My intention of adding this case on the website is to make use of the Supreme Court judgments cited in this case, specifically the Grasim Industries Ltd one.

Ashwini Pradhan Vs UOI and Anr on 08 Aug 2023

Index of DV cases is here.

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Tag: Law or Body Struck Down as Unconstitutional

Ashwini Pradhan Vs UOI and Anr on 08 Aug 2023