Time to revamp marriage law in our country; marriage and divorce should be under secular law

Time to revamp marriage law in our country; marriage and divorce should be under secular law

XXXXX Vs XXXXX

Kerala HC

30/07/2021

MAT. APPEAL NO. 151 OF 2015

About/from the judgment:

The law should also evolve with the changing society to enable individuals to make the decisions in their own affairs, the Court said.

The High Court has called for a revamp of marriage and divorce laws in the country to make it uniform for all citizens across religions and communities.

"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," the Court said.

Time has come to revamp marriage law in our country. - Kerala High Court

The Court ,in its judgment, also emphasised the need to establish legal safeguards to protect the spouse who file 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, the law cannot ignore loss of such spouse who suffered in the matrimony or in separation. Husband or wife is likely to be exposed to vulnerability on 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 causation demands empowerment of such spouse. Sometimes the spouse who seeks the divorce might be responsible for disruption of the relationship. The law has to safeguard the spouse as against any loss suffered in relationship or on such separation," the judgment said.

In view of the above, the Court said that law should provide for marital damages and compensation.

"Our law also should equip (us) to deal with marital damages and compensation. We need to have a law dealing with human problems with a humane mind to respond," the Court said.

The Court opined that in order to establish such legal safeguards, it is necessary to first bring a common code of law that applies to all communities equally, at least in regard to marriage and divorce.

Marriage and divorce must be under the secular law; that is the need of the hour - Kerala High Court

The Court also commented about extent to which 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? While individuals now have the freedom to voluntarily choose their partner, they seem not have the freedom to separate or break the relationship of their will," the Court observed.

The Court underscored that law should not compel a spouse to suffer in marriage by denying divorce.

"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."

Noting that the law on divorce was enacted at a time when dissolution of marriage was accepted only in the most extreme of circumstances, the Court expressed its apprehension as to whether, in the changed scenario of marriage in society, the present divorce law would actually stand the test of constitutionality.

To achieve a fine balance between individual choice and individual's best interest, the Court opined that the role of legislation is only to provide or lay down measures to determine the path for appropriate decisions by the individuals.

"Paternalistic intervention through legislation must be limited to help and aid parties in taking a decision for their own good. Therefore, the framework of divorce law must be with an objective to help individuals to take a decision on their own affairs. This framework must promote a platform at different levels to enable individuals to exercise free choice," the judgment said.

While the State believes a sustained family constitutes happiness in the larger society and therefore justifies its paternalistic intervention, the Court cautioned that it should enable individuals to take decisions in their own affairs.

"The forum provided under 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.

To achieve this, the Court reiterated that there must be a common code, a secular one, in regard to marriage and divorce.

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