A Division Bench Justices A. Muhammed Mustaque and Kauser Edappagath of the Kerala High Court emphasizsd the need for common code of law for marriage and divorce for all communities.
The bench, while dismissing an appeal filed by a husband, that the appeal arises out of a common judgment which allowed a petition for divorce on the ground of cruelty and dismissed a petition for restoration of marital rights, said that “Marriage and divorce must be under the secular law”.
“Marriage and divorce must be under the secular law; that is the need of the hour. Time has come to revamp the marriage law in our country.”
The bench also said that, “disregarding the autonomy of the wife is a marital rape”, but it does not falls under cruelty.
“A husband’s licentious disposition disregarding the autonomy of the wife is a marital rape, albeit such conduct cannot be penalised, it falls in the frame of physical and mental cruelty. Marital rape is alien to our penal jurisprudence.”
The bench also said that, marital rape is ground for divorce.
“Merely for the reason that the law does not recognise marital rape under penal law, it does not inhibit the court from recognizing the same as a form of cruelty to grant divorce. We, therefore, are of the view that marital rape is a good ground to claim divorce.”
The bench also observed that the system does not balance the interests of individuals, as they can choose a partner but cannot separate.
“Men choose, and men fail. Choosing a partner is autonomy; the choice to separate is not autonomy. Where do we balance the individuals best interest and the larger interest of the society? Divorce law prevalent today alludes to a discussion and deliberation of delicate balancing exercise as above. Autonomy is now considered as a part of privacy and ennobled as a fundamental right.”
The bench further stated that law cannot compel a spouse to suffer by denying the 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.”
The bench also said that the divorce law was enacted when divorce was an exception.
“Law on divorce was enacted, reflecting deeper values of the culture of the society at that time. In those times, the social philosophy behind marriage does not recognize the dissolubility of the marriage except in extreme circumstances.”
While the bench restrained itself from making further remarks but said that, balancing of individual is missing in the changing family traditions.
“In a changed scenario of marriage in the society, shifting from the social philosophy to individual philosophy, we are afraid whether the present divorce law on enumerated grounds would stand to the test of constitutionality. Fine balancing of individual choice and individual’s best interest is missing in such law.”
The bench also said that the existence of marriage and family determined by the behaviour of each-other.
“Though men may feel that they are free to choose what they want, their choice is conditioned by the circumstances surrounding them. The very existence of humans on this earth is conditioned and determined by the behaviour of others. Marriage and family are not free from such patterns of behaviour in society.”
The bench also said that the loss of individual in separation cannot be ignored.
“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… The law has to safeguard the spouse as against any loss suffered in relationship or on such separation. Therefore, our law also should equip to deal with marital damages and compensation. We need to have a law dealing with human problems with a humane mind to respond.”
The bench emphasized the need for common code of law for marriage and divorce for all communities.
“There cannot be any difficulty in having a common code of law to all communities, at least for marriage and divorce on the above line. 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. Time has come to revamp the marriage law in our country.”