Enquiry under Section 10(2) of Divorce Act- Mandatory for Divorce by Mutual Consent- Kerala High Court


November 14, 2108

One of the seminal issue that fell for consideration before the High Court of Kerala in this recent case was whether the Family Court could allow dissolution of a marriage without conducting an enquiry as contemplated in sub-section (2) of Section 10A of the Divorce Act and without insisting upon, either the presence of the parties or affidavits of the parties?

In the case, the appellant and the respondent had jointly filed petition seeking dissolution of their marriage based on mutual consent under Section 10A of the Divorce Act, 1869  (dissolution of marriage by mutual consent) and accordingly the marriage was dissolved between the parties and the Court granted permanent custody of the minor children to the respondent. Aggrieved by the grant of custody of children to the respondent, the Appellant challenged the Family Court’s order and also contended that the mandatory duty cast upon the court under Section 10A(2) of the Act has not been discharged legally.

It was contended that in the case there was no satisfaction recorded on the essential ingredients of Section 10A for granting a dissolution of the marriage by mutual consent as the Court did not take into consideration the fact that the ‘interregnum waiting period’ is intended to give time and opportunity to the parties to reflect on their move and to seek advice from relatives and friends. That being a mandatory requirement, non-compliance of the same will nullify the decree of dissolution.

Bench’s Verdict

The Court noted that a decree dissolving the marriage under Section 10A of the Act is made based on the satisfaction of the Court regarding existence of certain basic ingredients and statutory requirements. Thus, such a decree cannot be termed as a decree passed merely on consent of the parties[1].

That the waiting period of six months provided under Section 13B(2) of the Hindu Marriage Act is the transitional period during which one of the parties may have a second thought and a change in the mind not to proceed with the petition and to remain or abstain from the joint motion to be made under sub-section (2).

Whether there was proper compliance with the statutory formalities contemplated under sub-section (2) of Section 10A?

With reference to the facts of the case, the High Court observed that the impugned judgment and decree was vitiated by material irregularity due to the failure on the part of the court below in conducting a proper enquiry at the time of the second motion at the time of expiry of the statutory waiting period and in recording satisfaction based on such an enquiry conducted.

In view of the aforesaid, the High Court allowed the appeal and set aside judgment passed by the Family Court in the case.

The case can be accessed here.

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[1] Girija Kumari v. Vijayanandan (1995(1) KLT 521)