2015 (5) TMI 1270 - HC - Indian Laws

Order dismissing joint divorce petition under Section 10A(1) quashed as unsustainable; petitioners may proceed to divorce.

The HC quashed and set aside the Family Court's order dismissing a joint petition for dissolution by mutual consent under Section 10A(1) of the Divorce ... Seeking dissolution of marriage by consent u/s 10­A(1) of Divorce Act 1869 - HELD THAT:- The Constitutional validity of the Section 10A(1) to the extent of the period of seperation before the parties can seek divorce by mutal consent was challenged before the Kerala High Court in the case of S.A. Thomas [2010 (2) TMI 1282 - KERALA HIGH COURT]. It was contended that Section 10­A(1) of the said Act, which provides for a minimum period of separation of two years, before the parties can seek divorce by mutual consent, offends Articles 14 and 21 of the Constitution of India, inasmuch as similar provisions contained in Section 13B of the Hindu Marriage Act, Section 32B of the Parsi Marriage and Divorce Act and Section 28 of the Special Marriage Act provide for a minimum separation for one year. In Kusum Ingots & Alloys Limited [2004 (4) TMI 342 - SUPREME COURT (LB)], the appellant, which was a company having its registered office at Mumbai, had obtained a loan from the Bhopal Branch of the State Bank of India. The second respondent therein had issued a notice for repayment of the said loan, from Bhopal, purportedly under the provisions of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. The appellantcompany had approached the Delhi High Court challenging the vires of the Act of 2002 which was dismissed on the ground of lack of territorial jurisdiction. The learned Judge of the Family Court has dismissed the petition at the threshold, in view of the provisions of Section 10­A(1) of the said Act. It is found that the impugned order cannot be sustained and will have to be set aside. It is also found that it would neither be appropriate nor necessary to remand the matter to the Family Court, inasmuch as the petitioners have filed this petition jointly and the record shows that the petition before the Family Court was filed after one year of the parties staying separately. It would thus be superfluous to send the matter back to the Family Court. The impugned order dated 08­07­2014 passed by the learned Judge Family Court, Mumbai is hereby quashed and set aside - petition allowed in part. ISSUES PRESENTED AND CONSIDERED 1. Whether the stipulation in Section 10A(1) of the Indian Divorce Act, 1869 requiring parties to have 'been living separately for a period of two years or more' as a condition precedent to the presentation of a petition for dissolution of marriage by mutual consent is constitutionally valid under Articles 14 and 21 of the Constitution. 2. Whether a High Court decision declaring the constitutional invalidity (or reading down) of a provision of a Central Act in writ jurisdiction under Article 226 operates throughout the territory of India, subject to the applicability of the Act, and therefore governs subsequent identical challenges in other High Courts. 3. Whether a Family Court's dismissal at the stage of admission of a joint petition for divorce by mutual consent filed after one year of separation (but before two years) is sustainable where higher-court precedent has read down the statutory period to one year. ISSUE-WISE DETAILED ANALYSIS Issue 1: Constitutional validity of the two-year separation requirement in Section 10A(1) Legal framework: Section 10A(1) of the Indian Divorce Act, 1869 permits presentation of a mutual-consent divorce petition where the parties 'have been living separately for a period of two years or more' and mutually agree to dissolution. Articles 14 and 21 of the Constitution protect equality and the right to life and personal liberty, respectively. Precedent treatment: A Division Bench of a High Court confronted with the same challenge held that the two-year stipulation violated Articles 14 and 21 and to avoid unconstitutionality read the period down to one year. That decision was subsequently followed by another High Court Division Bench in similar circumstances. Interpretation and reasoning: The court considered parity with analogous statutory provisions-Section 13B of the Hindu Marriage Act, Section 32B of the Parsi Marriage and Divorce Act and Section 28 of the Special Marriage Act-which prescribe one year separation for mutual-consent divorce. The disparity in the period under Section 10A(1) was treated as a classification that lacked a rational nexus with the object of the statute and therefore susceptible to challenge under Article 14; implicit effects on marital autonomy and personal liberty engaged Article 21. Rather than striking down the provision outright, the earlier High Court mitigated the constitutional defect by reading the statutory period down to one year to harmonize with comparable statutes and preserve legislative intent as far as possible. Ratio vs. Obiter: The holding that the two-year period, insofar as it mandates two years' separation, is constitutionally infirm and should be read down to one year constitutes the operative ratio in that earlier decision. Observations comparing the provisions of other marriage statutes and the preferred remedy of reading down are central to the decision and not mere obiter. Conclusions: The Court accepted the reasoning of the prior Division Bench and applied it: the effective legal consequence is that parties who have lived separately for one year satisfy the statutory precondition for presentation of a mutual-consent petition under Section 10A, thereby curing the constitutional vice without invalidating the provision wholly. Issue 2: Territorial effect of a High Court's constitutional ruling under Article 226 Legal framework: Clause (2) of Article 226 permits High Courts to issue writs for enforcement of fundamental rights and for any other purpose. The question is the territorial operation of a High Court's declaration on constitutionality of a parliamentary Act when issued in a writ petition. Precedent treatment: The Supreme Court has held that an order passed on a writ petition questioning the constitutionality of a parliamentary Act, whether interim or final, will have effect throughout the territory of India subject to the applicability of the Act. High Court decisions on constitutional validity in writ jurisdiction have been applied by other High Courts where the Act and issues are common. Interpretation and reasoning: Applying the principle that a High Court's determination of constitutional validity of a central statute may have wider effect, the Court held that the earlier Division Bench decision which read down Section 10A(1) to one year governs similar challenges across the territory, subject to the Act's applicability. The Court relied on the binding force of the Supreme Court precedent that articulates this territorial effect and concluded that it was unnecessary to re-adjudicate the constitutional issue independently. Ratio vs. Obiter: The proposition that a High Court's writ-order on constitutionality of a central Act operates beyond its territorial limits (subject to applicability) was treated as an operative principle by the Supreme Court and is applied here as binding guidance; the Court's reliance is ratio in the context of applying precedent rather than a novel pronouncement. Conclusions: The prior High Court decision reading down Section 10A(1) to one year applies and governs the controversy; therefore the petitioners' joint petition filed after one year of separation falls within the permissible statutory period as read down. Issue 3: Correctness of Family Court's dismissal at admission stage and appropriate remedy Legal framework: Family Courts admit or dismiss petitions at the admission stage having regard to statutory requirements. Section 10A(1) prescribes the precondition of separation period; procedural rules permit remand or final disposal depending on circumstances. Precedent treatment: Family Court dismissed the petition at admission because the petition was filed after one year of separation but before two years, relying on the literal two-year requirement. Higher-court precedents that read down the period to one year undermine that rationale. Interpretation and reasoning: Given that the joint petition was filed after one year of separation, and in light of the binding effect of the prior Division Bench ruling as applied nationally, remanding to the Family Court was unnecessary and would be superfluous. The Court found the impugned order unsustainable and proceeded to quash and set it aside. Considering parties' joint consent and the timing of filing (after one year), the Court directly allowed the petition rather than ordering fresh proceedings. Ratio vs. Obiter: The determination that the Family Court's dismissal could not be sustained and the grant of a decree of divorce by mutual consent without remand constitutes the operative decision in the present proceedings (ratio). Observations on procedural propriety of remand are ancillary but directly applied. Conclusions: The Family Court's order dismissing the petition at admission for lack of the statutory two-year separation is quashed. The joint petition filed after one year is allowed under Section 10A as read down, and a decree dissolving the marriage by mutual consent is granted. No costs were ordered. Cross-references See Issue 1 (constitutional reading down) linked to Issue 2 (territorial applicability of prior High Court ruling) - the acceptance of Issue 2's principle is the basis for the Court declining to re-examine constitutional validity in Issue 1 and for the disposition in Issue 3.