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Kerala High Court: The Need for Secular Marriage and Divorce Law

By Saakshi S. Rawat      Aug 09, 2021      0 Comments      1,816 Views

In a matrimonial petition assessing the legitimacy of marital rape as a reason for divorce, the Kerala High Court stated that marriage and divorce should be regulated under secular law.

Upon disposing the appeal, a Division Bench of Justice A. Muhamed Mustaque and Justice Kauser Edappagath made the following observations: Persons are allowed to perform their marriages according to personal law, but they cannot be exempted from secular law's need of solemnization. The need of the times is for marriage and divorce to be governed by secular law. It is past time for our country's marriage laws to be updated.

The Court made the suggestion while issuing a landmark judgement confirming marital rape as a valid reason for divorce.

After analyzing the legal ramifications of filing a divorce in the country, the Bench stated that the law should protect the spouse who wishes to dissolve the legal partnership with his or her partner from any losses incurred during the relationship or as a result of the separation.

Dissolubility of matrimony can result in a slew of disadvantages for a partner. Whereas the law permits a person to act on his or her own preferences, it cannot overlook the loss of a companion who has endured in the matrimony or after a divorce. When a husband or wife exercises such a separation decision, he or she is likely to be vulnerable. Vulnerability refers to a circumstance in which a spouse will be affected as a result of the separation, and correlation necessitates the spouse's independence. It's possible that the spouse who is seeking a divorce is to blame for the breakdown of the partnership. It's possible that the spouse who is seeking a divorce is to blame for the breakdown of the partnership. The law must protect the spouse from any losses incurred during the relationship or as a result of the separation. As a result, our legal framework should include provisions for dealing with marital damages and reimbursement. "We need a legislation that deals with human problems and responds with a compassionate mentality," the Court ruled.

As a result, the Bench recommended that, if for nothing else, it was critical to establish a standard code of law that equally applies to all groups in this regard.

The High Court, while remarking on the State's power to intervene in such circumstances, stated that a strong family is happiness for the greater society and the ultimate satisfaction of the State. As a result, the State's paternalistic involvement on behalf of the public interest was determined to be justified, and the State must be authorised to control divorce.

The purpose of law was also discovered to be laying down measures to decide the way for individuals to make proper judgments, while emphasising that paternalistic interference through legislation must be confined to assisting and assisting parties in making important decisions toward their own welfare.

As a result, the Court concluded that the foundation of divorce law must be designed to assist individuals in making decisions about their own matters. This framework must provide a platform at many levels that allows people to exercise their freedom of choice.

The opportunity granted by law to determine on the outcome of a relationship must be granted with an authority to enable parties to make the most appropriate option regulating their own affairs by themselves, not by wresting the right to decide on their fate on a fictional foundation, the Bench continued.

kerala high courtDivorceSecular Marriage
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