The Court said that divorce laws should evolve in tune with changing times and State interference in matters of personal life should be minimal and individual autonomy should be recognised.
The Kerala High Court recently called for revamp of divorce laws stating law should not compel a spouse to suffer in marriage by denying divorce.
In this regard, a Bench of Justices Justices A Muhamed Mustaque and Kauser Edappagath said that State interference in matters of personal life should be minimal and individual autonomy should be recognised in tune with changing times.
“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 observations were made in a case relating to marital rape as a ground for divorce.
The Court also commented on the extent to which the State should ideally be allowed to interfere in matters of marriage and divorce.
“Where do we balance individual’s best interest and the larger interest of the society,” the Court asked.
It said that while it appears that individuals now have the freedom to voluntarily choose their partner, they seem to not have the freedom to separate or break the relationship of their will.
The Court noted that laws on divorce was enacted at a time when dissolution of marriage was accepted only in the most extreme of circumstances,
Thus, the Court expressed its apprehension as to whether, in the changed scenario of marriage in society, the present divorce laws 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 should only be 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.
SOURCE : Barandbench
