Madras High Court
A.Vinotha vs Sahaya Alwin Anittar on 7 January, 2021
C.R.P.(MD)No.6 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 07.01.2021
CORAM :
THE HONOURABLE MRS.JUSTICE J.NISHA BANU
C.R.P.(MD)No.6 of 2021
A.Vinotha ... Petitioner
vs.
Sahaya Alwin Anittar ... Respondent
Prayer : Civil Revision Petition filed under Article 227 of the
Constitution of India, to direct the District and Sessions Court,
Ramanathapuram to take the unnumbered I.D.O.P.No. of 2020 on file.
For Petitioner : Mr.S.A.Ajmalkhan
ORDER
The present revision petition has been filed for a direction to the
learned District and Sessions Judge, Ramanathapuram, to take the
unnumbered IDOP No. of 2020 on file.
2.The learned counsel for the petitioner would state that the
marriage between the petitioner and the respondent was solemnised on
17.05.2019 at St.John De Britto Church, Kalaiyarkovil, Sivagangai
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C.R.P.(MD)No.6 of 2021
District, as per the Christian rites and customs and due to some
matrimonial disputes, the petitioner and the respondent is living
separately from 30.05.2019 and the efforts taken by the elders for reunion
went in vain and thereafter, the parties decided to file a mutual consent
divorce petition under Section 10(A) of the Indian Divorce Act on
19.10.2020. The Court below returned the said petition pointing out
certain defects and after rectification, the same was re-presented on
09.11.2020, but again on 10.11.2020, the said petition was returned as to
the maintainability. Hence, this petition.
3.The learned counsel for the petitioner would contend that the
Court below has erroneously returned the divorce petition on the ground
that it is not maintainable as per Section 10A of the Indian Divorce Act,
by which, it has to be filed within two years from the date of separation.
According to the learned counsel, the said prescription of two years has
been held to be unconstitutional as it violates the fundamental rights to
equality and the right to life under Articles 14 and 21 of the Constitution.
In support of the said proposition, he would rely on a decision of this
Court in P.Epsi vs J.Eugeen Durai Mahesh Kumar, CRP(NPD)No.1011
of 2016, dated 30.03.2016 and a decision of the Karnataka High Court in
Mr.Shiv Kumar vs. Union of India, W.P.13112/2012 dated 03.02.2014.
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C.R.P.(MD)No.6 of 2021
4.Heard the learned counsel for the petitioner. In view of the order
going to be passed, notice to the respondent is not necessary.
5.In P.Epsi vs. J.Eugeen Durai Mahesh Kumar, CRP(NPD)No.1011
of 2016, dated 30.03.2016, relied on by the learned counsel for the
petitioner, this Court has held as follows:-
''3.The first contention of the learned counsel for the
revision petitioner is that in order to maintain the petition for
divorce by mutual consent, period of one year separation is
sufficient, as per the dictum laid down, as against the
statutory requirement of two years. In order to support this
preposition, (While representing the petition), the petitioner
has relied upon the decision reported in II (2010) DMC 526
(DB) Kerala High Court in which it has been held that :
(a) The stipulation in Sec.10A(1) of the Divorce Act that the
spouses must "have been living separately for a period of
two years or more" is declared to be unconstitutional as the
stipulation of the period of "two years" therein violates the
fundamental rights to equality and the right to life under
Arts.14 and 21 of the Constitution.
(b) To save the provision and to avoid the vice of
unconstitutionality the period of "two years" stipulated in
Sec.10A of the Divorce Act is read down to a period of "one
year".
Thus it is clear that, the return regarding period of
separation has been complied by the petitioner.
6.The Court also expects proof for separate living.
There may be cases where the couples who are living
together can make averments that they are separately living.
Anticipating this, the Court expects proof. It is a matter for
enquiry and it is not a matter for rejection at the threshold. It
is an application jointly presented seeking divorce by mutual
consent. Having regard to the relief asked for, the Court is
expected to be pragmatic in their approach while taking the
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C.R.P.(MD)No.6 of 2021
case on file. Therefore, the orders of the Court repeatedly
returning the petition are unjustified.''
6.In yet another decision relied on by the learned counsel for the
petitioner, the Karnataka High Court in Mr.Shiv Kumar vs. Union of
India, W.P.13112/2012 dated 03.02.2014, has held as follows:-
''7. Having heard learned counsel and on perusal of
the judgment of the Kerala High Court in Soumya Ann
Thomas, as well as the judgment of the Apex Court in
Kusum Ingots and Alloys Ltd., what follows is that Section
10A(1) of the Act has been held to be unconstitutional being
violative of Articles 14 and 21 of the Constitution.
However, to save it from the vice of unconstitutionality, the
expression of 'two years' has been read down to 'one year' in
sub-section (1) of Section 10A of the Act. The Kerala High
Court's pronouncement on the constitutionality of a
provision of a Central Act would be applicable throughout
India. This is made clear by Hon'ble Supreme Court in
Kusum Ingots and Alloys Ltd., wherein it has been stated
that an order passed on a Writ Petition questioning the
constitutionality of a Parliamentary Act whether interim or
final keeping in view the provisions contained in Clause (2)
of Article 226 of the Constitution, would have effect
throughout the territory of India subject of course to the
applicability of the Act. In that view of the matter, this Writ
Petition would not call for any specific orders with regard to
holding constitutionality or otherwise of sub-section(1) of
Section 10A of the Act. Keeping in mind the pronouncement
of the Division Bench of the Kerala High Court and reading
the same in the context of Kusum Ingots and Alloys Ltd, the
position of law with regard to sub-section (1) of Section 10A
of the Act is now been made clear, particularly, insofar as
State of Karnataka is concerned.
7.Admittedly, the parties are living separately from 30.05.2019. In
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C.R.P.(MD)No.6 of 2021
my considered opinion, the above decisions are squarely applicable to the
present facts and circumstances of the case and therefore, the learned
District and Sessions Judge, Ramanathapuram, is directed to number the
IDOP and dispose of the same in the manner known to law.
8.With the above directions, this Civil Revision Petition is
allowed. No costs. Registry is directed to return the original documents
filed along with this revision to the learned counsel for the petitioner,
after substituting its attesting copies.
07.01.2021
Index :yes/No
Internet:yes/No
bala/gns
NOTE: In view of the present lock down owing to COVID-19 pandemic,
a web copy of the order may be utilized for official purposes, but,
ensuring that the copy of the order that is presented is the correct copy,
shall be the responsibility of the advocate/litigant concerned.
Issue order copy on 05.02.2021.
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C.R.P.(MD)No.6 of 2021
J.NISHA BANU, J.
bala/gns
To
The District and Sessions Judge,
Ramanathapuram.
ORDER MADE IN
C.R.P.(MD)No.6 of 2021
DATED : 07.01.2021
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