Religious bias? Separation period for Christians challenged

New Delhi: The Supreme Court on Monday issued notice to the Centre on a petition challenging the constitutional validity of Section 10 A (1) of the Divorce Act, 1869, governing divorce for Christians, prescribing a two-year period of separation for divorce with mutual consent.

A Bench headed by Justice Vikramajit Sen issued notice on the petition filed by Albert Anthony of New Delhi seeking a declaration that the provision was illegal and void.

The petitioner said, “Section 10 A (1) of the Divorce Act says a petition for dissolution of marriage may be presented to the District Court by both the parties to a marriage together, whether such marriage was solemnised before or after the commencement of the Indian Divorce (Amendment) Act, 2001, on the ground that they have been living separately for a period of two years or more, that they have not been able to live together and they have mutually agreed that the marriage should be dissolved.”

He said while the Divorce Act mandates separation for a period of two years, provisions for divorce by mutual consent in other statutes such as Section 28 of The Special Marriage Act, 1954, Section 13-B of The Hindu Marriage Act, 1955, and Section 32 B of The Parsi Marriage and Divorce Act, 1936 require and prescribe statutory period of separation as one year. He argued that the controversial provision acted as oppression to the members of Christian community intending to seek divorce by mutual consent.

He said there existed a hostile discrimination for Christians only on the basis of religion as they were require to observe separation for two years before applying for divorce by mutual consent. “However, members of other communities are required to observe separation for a period of one year only before applying for divorce by mutual consent under similar provisions in other statutes,” he said adding that the provision violates the Constitution guarantying right to equality and right to life.