The Kerala High Court has called for a reform in the marriage and divorce laws in the country to bring them under a uniform code for all the citizens of different religions and communities. Note able observations were made to that effect by a Bench of Justices A Muhammed Mustaque and Kauser Edappagath while rendering a landmark judgment wherein it was held that marital rape can be legit ground for seeking a divorce.
The Court in the present case also stressed the need to establish safe safeguards to protect the spouse who filed for divorce.
“Dissolubility of marriage may bring myriad losses to a spouse on such separation. While law allowing an individual to act on his or her choice; however the law cannot ignore the loss of such a spouse who suffered in the matrimony or in separation. Husband or wife is likely to be exposed to vulnerability on the exercise of such option for separation by one of the spouse. Vulnerability alludes to a situation of a spouse who will be disadvantaged consequent upon such separation and consequent demands empowerment of such spouse. Sometimes the spouse who seeks divorce might be responsible for the disruption of the relationship. The law has to safeguard the spouse of the spouse as against any loss suffered as against my loss suffered in a relationship or on such separation”, the judgment said.
The Court also commented about the extent to which the State intervention should be permitted in matters of marriage and divorce.
“Where do we balance the individual’s best interest and the larger interest of the society? It posited that it appears that while individuals now have the freedom to voluntarily choose their partner, they seem not to have the freedom to separate or break the relationship of their will”, the Court observed.
“A spouse in a marriage has a choice, a choice not to suffer which is fundamental to the autonomy guaranteed under natural law and the Constitution. Law cannot compel a spouse to suffer against his or her wish by denial of divorce by the court. This is what really happens on the dismissal of the divorce petition”.
“Individuals are free to perform their marriage in accordance with personal law, but they cannot be absolved from compulsory solemnization of the marriage under secular law. Marriage and divorce must be under the secular law; that is the need of the hour.”
While State holds a view that a sustained family comprises happiness in the larger society and therefore justifies its paternalistic intervention, the Court cautioned that it should enable the citizens to make decisions in their own affairs.
“The forum provided under the law to decide upon the fate of a relationship must be conceded with a power to enable parties to decide on the best possible choice governing their own affairs by themselves and not by wresting the power on a fictional ground to decide on their fate”, the Court said.
Case Details
Before: Kerala High Court
Coram: Hon’ble Mr. Justice A. Muhamed Mustaque, Hon’ble Mr. Justice Kauser Edappagath
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