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A division Bench of the Kerala High Court said that the stipulation of the period of one year or more for filing a divorce petition by mutual consent — under Section 10 A of the Divorce Act, 1869 — violates fundamental rights and is unconstitutional.
The bench of Justices A. MuhamedMustaque and Shoba Annamma Eapen said the Union Government should seriously consider having a “uniform marriage code in India to promote the common welfare of spouses in matrimonial disputes.’’
The High Court was acting upon a petition moved by a young Christian couple, challenging the refusal of a family court to enter their joint petition for divorce.
Their marriage was solemnised as per Christian rites on January 30 this year. Their marriage was not consummated. The couple decided to seek divorce and on May 31, moved a joint petition before the Family Court, Ernakulam, under Section 10 A of the Divorce Act, 1869.
But the Family Court registry refused to number their petition, noting the restriction on filing a joint petition within one year after the marriage under Section 10 A.
The Family Court rejected the petition holding that one-year separation after the marriage is an essential condition to maintain a petition under the Act.
Subsequently, the couple moved the High Court under Section 151 of the Code of Civil Procedure. The court appointed Sandhya Raju and Leela R. as amici curiae to assist it.
The couple also filed another petition to declare that the waiting period of one year fixed under Section 10A (1) of the Act is unconstitutional.
After examining the petitions in detail, the High Court also directed the family court to number the petition presented by the petitioners seeking divorce on mutual consent and dispose of the same within two weeks.
After examining whether the spouses have the right to separate their marriage mutually, before the aura of the marriage period of one-year ends, the court said the stipulation of the one-year period or more for the purpose of filing a divorce petition by mutual consent under Section 10A is “violative of fundamental right and is declared unconstitutional”.
Express Network
Corruption is a serious threat to national security: P K Mishra (Page no. 4)
(GS Paper 2, Polity and Governance)
Principal Secretary to the Prime Minister, P K Mishra, said that corruption encourages dysfunctionality in government, perpetrates economic inefficiency and can be a serious threat to national security.
Delivering the keynote address at the International Anti-Corruption Day-2022, organised by the CBI on ‘Anti-Corruption efforts – A sine qua non for Development and Security’, Mishra said the impact of corruption is especially heavy on common citizens, and even more on poorer and vulnerable persons in communities.
Since liberalisation in India, the nature of corruption has become more complex. With technological development, there are opportunities to prevent corruption but also areas where corruption can be much more difficult to trace, particularly in fields like cryptocurrency.
Mishra said corruption, whether small or big, undermines the rights of someone or the other. Emphasising the importance of innovative anti-corruption solutions, Mishra stressed the need for real-time information sharing between law enforcement agencies.
India is ready to play an active role towards fighting various types of crimes with cross-border linkages, including financial crimes. India is ready to cooperate with other countries and agencies.
Since 2014, the country has decided to make a major change and move in a new direction, and the government has expeditiously put in place significant legal provisions to support the policy of zero tolerance against corruption.
In Parliament
National Judicial Commission Bill introduced in Rajya Sabha, AAP opposes (Page no. 8)
(GS Paper 2, Polity and Governance)
A private member bill to regulate the appointment of judges through the National Judicial Commission was introduced in Rajya Sabha by CPI(M)’s Bikash Ranjan Bhattacharyya but was opposed by AAP MP Raghav Chadha.
The National Judicial Commission Bill, 2022 was introduced after the majority of voice votes were in its favour.Bhattacharyya moved the bill that aims to regulate the procedure to be followed by the National Judicial Commission for recommending people for appointment as the Chief Justice of India and other judges of the Supreme Court and Chief Justices and other judges of High Courts.
The bill, if approved, will also regulate their transfers and to lay down judicial standards and provide for accountability of judges, and establish credible and expedient mechanism for investigating into individual complaints for misbehaviour or incapacity of a judge of the apex court or of a high court and to regulate the procedure for such investigation.
It also proposes for the presentation of an address by parliament to the president in relation to proceeding for removal of a judge and for matters connected therewith or incidental thereto.
Aam Aadmi Party (AAP) member Chadha opposed the bill, saying the concept of NJAC has come under consideration of the Supreme Court three times in 1993, 1998 and 2016.
All three times, while giving importance to independence of judiciary, the Supreme Court dismissed the framework of the NJAC.
Express Network
UGC proposes to make four-year UG courses must for degree with honours (Page no. 11)
(GS Paper 2, Education)
Under new regulations, likely to be announced by the University Grants Commission (UGC), students looking to graduate with honours in any subject will have to pursue four-year undergraduate programmes (FYUP).
However, the move will not have any impact on students who have taken admission in four-year undergraduate programmes offered by the Delhi University, which allows graduation with honours even to those exiting after six semesters or three years.
We were aware about the new regulations being planned by the UGC. But we will stick to the regulations approved by our own academic bodies in August under which students can graduate with honours after three years as well.
To be sure, the UGC had made public a draft of the proposed regulations in March itself. The UGC did not comment on the rationale behind approving a policy which differs from the one already in force in a university as large as the DU.
According to the draft UGC regulations on curriculum and credit framework for undergraduate programmes, “students who wish to undergo a 3-year UG programme will be awarded UG Degree in the Major discipline after successful completion of three years, securing 120 credits and satisfying the minimum credit requirement.”
To obtain an undergraduate honours degree, proposes the UGC, a student will complete four-year programmes with 160 credits. At the DU, however, apart from those completing four-year courses, honours degrees are also given to students who pursue a three-year undergraduate programme in a specific discipline.
Meanwhile, the UGC regulations will also allow students who have already enrolled and are pursuing a three-year UG programme as per the existing Choice Based Credit System (CBCS) to pursue an FYUP.
The Editorial Page
Charity and Conversion (Page no. 12)
(GS Paper 2, Polity and Governance)
The purpose of charity should not be conversion. Every charity or good work is welcome, but what is required to be considered is the intention,” said a Division Bench judge of the apex court hearing a petition seeking a ban on “forced” conversions (IE, December 6).
The observation, loaded with significant implications, is to be considered in the light of the provisions of the Constitution relating to people’s fundamental right to freedom of religion, its legislative history and judicial interpretation.
The Universal Declaration of Human Rights 1948 — which was before the makers of the future Constitution for independent India — had proclaimed: “Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance” [Article 18].
Keeping this in mind, religious freedom as a people’s right was repeatedly debated in the Constituent Assembly. In cognisance of Christianity’s traditions of evangelism and proselytisation, it was to include the right to propagate religion.
While the first draft of the future Constitution proposed to restrain conversion except by one’s own free will, the second was to recognise the “right to preach and convert within limits compatible with public order and morality.”
Eventually, the Constitution recognised the right to propagate, along with freedom of conscience and the right to profess and practice, one’s religion as people’s fundamental right.
Prima facie, individuals’ right to forsake their religion by birth and embrace another faith was integral to freedom of conscience. Interestingly, the Bombay High Court has recently held that the freedom of conscience of a person “includes a right to openly say that he does not believe in any religion” (Ranjeet Mohite, 2015).
As regards the propagation of religion, in two cases decided in 1954, the apex court observed that Article 25 covered every individual’s right “to propagate his religious views for the edification of others” (RP Gandhi) and that “it is the propagation of belief that is protected, no matter whether the propagation takes place in a church or monastery, or in a temple or parlour meeting” (Shirur Math).
Explained
Debates over jumbos vermin (Page no. 16)
(GS Paper 3, Environment)
The Wild Life (Protection) Amendment Bill 2022, which was passed by Rajya Sabha, has invited scrutiny on two major issues: the exemption made to allow the transfer of captive elephants, and the sweeping powers given to the Centre to declare species as vermin. Lok Sabha cleared the Bill in August.
The legal dilemma over the elephant’s status — simultaneously an endangered wildlife species and a prized domestic animal — has persisted for long.
In 1897, the Elephants’ Preservation Act prohibited the killing or capture of wild elephants unless in self-defence or to protect property and crops, or under a licence issued by the district collector.
In 1927, the Indian Forest Act listed the elephant as ‘cattle’, prescribing the highest fine of Rs 10 for every impounded jumbo — in comparison, a cow attracted a fine of Re 1, and a camel of Rs 2.
The Wildlife (Protection) Act (WLPA), 1972, identified the elephant, along with the bullock, camel, donkey, horse, and mule, as a “vehicle”.
Given the highest legal protection in 1977, the elephant is the only animal in WLPA’s Schedule-I that can still be owned legally — by means of inheritance or gift.
In 2003, Section 3 of the WLPA prohibited trade in all captive wildlife and any (non-commercial) transfer across state boundaries without permission from the concerned chief wildlife warden.
The WLPA (Amendment) Bill 2021 proposed an exception to Section 43: “This section shall not apply to the transfer or transport of any live elephant by a person having a certificate of ownership, where such person has obtained prior permission from the State Government on fulfillment of such conditions as may be prescribed by the Central Government.
Along with conservation and animal welfare groups, the Parliamentary Standing Committee headed by Congress leader Jairam Ramesh objected to the blanket exemption, and recommended that it should be limited to temple elephants kept for religious purposes.
Critics point out that the prohibition on commercial transfer only drove the live elephant trade underground as traders switched to dressing up commercial deals as gift deeds to bypass the 2003 amendment.