1 2026:CGHC:537-DB AFR HIGH COURT OF CHHATTISGARH AT BILASPUR FA(MAT) No. 448 of 2025 1 - Ankur David S/o Shri Sandeep David Aged About 29 Years R/o House No. 105, Ward N. 10 Indu Chowk Jarhabhata Bilaspur, Tahsil And District Bilaspur, Chhattisgarh 495001 2 - Smt. Roli Ambesh W/o Shri Ankur David Aged About 29 Years R/o Tilak Ward Mandla, District Mandla , M.P. 481661 ... Appellants versus Nill ... Respondent For Appellants : Mr. Curtis Collins, Advocate As Amicus Curiae : Mr. Rahul Tamaskar, Advocate DB- Hon'ble Shri Justice Sanjay K. Agrawal Hon’ble Shri Justice Sanjay Kumar Jaiswal Judgment On Board 06.01.2026 Sanjay K. Agrawal, J. 1. Invoking jurisdiction of this Court under Section 19(1) of Family Court Act, 1984, the appellants, who are husband HARNEET KAUR Digitally signed by HARNEET KAUR Date: 2026.01.07 10:37:03 +0530 2 and wife, have preferred this appeal calling in question the legality, validity and correctness of impugned order dated 04/11/2025 (Annexure A/1) passed by learned Principal Judge, Family Court, Bilaspur whereby the application filed by the appellants under Section 10A of the Divorce Act, 1869 (hereinafter, “the Act of 1869”) seeking divorce by mutual consent has been rejected holding it to be premature. 2. The short question involved in this appeal is, “whether learned Principal Judge, Family Court, Bilaspur is justified in dismissing the application filed by the appellants under Section 10A of the Act of 1869 for dissolution of marriage by mutual consent holding it to be premature on the ground that they had not been living separately for a period of two years or more at the time of presentation of the application ?” 3. The aforesaid question arises on the following factual backdrop :- (a) The appellants herein are Christians and their marriage was solemnized on 25/06/2025 at Disciples of Christ Church, Bilaspur, however, on account of mutual discord immediately thereafter, they started residing separately from July, 2025 and they filed an application for grant of divorce by mutual consent on 04/11/2025. 3 (b) Learned Family Court, Bilaspur, by its impugned order dated 04/11/2025 (Annexure A/1) rejected the application filed by the appellants herein holding that there is a stipulation of living separately for two or more years for filing an application for dissolution of marriage by mutual consent as provided under Section 10A of the Act of 1869 and it has not been complied with, therefore, the application filed by the appellants is not maintainable and the Family Court proceeded to reject the said application holding it to be premature. 4. Mr. Curtis Collins, learned counsel for the appellants, would submit that Section 10A of the Act of 1869 has been declared unconstitutional by the High Court of Kerala in the matter of Saumya Ann Thomas v Union of India1 which would have a Pan-India effect and therefore, it is binding on all the Family Courts in the State of Chhattisgarh including the Family Court, Bilaspur. As such, the impugned order is liable to be set aside. 5. Mr. Rahul Tamaskar, learned Amicus Curiae, would submit that the decision of Kerala High Court in the matter of Saumya Ann Thomas (supra) has been followed with approval by the High Court of Karnataka in the matter of Shiv Kumar v. Union of India2 as well as by the Bombay High Court in the matter of Lancy Leo Mendonka v. Union 1 2010 SCC Online Ker 5197 2 2014 SCC Online Kar 10121 4 of India3. He would further submit that the decision rendered by the Kerala High Court in Saumya Ann Thomas (supra) declaring Section 10A of the Act of 1869 as unconstitutional would be operative all throughout India in light of the decision rendered by the Supreme Court in the matter of Kusum Ingots & Alloys Ltd. v. Union of India4, therefore, the impugned order is liable to be set aside. 6. We have heard learned counsel for the parties, considered their submissions made herein-above and went through the records with utmost circumspection. 7. In order to consider the plea raised at the Bar, it would be appropriate to notice the provision contained under Sub- section (1) of Section 10A of the Act of 1869, which states as under :- “10A. Dissolution of marriage by mutual consent. - (1) Subject to the provisions of this Act and the rules made thereunder, a petition for dissolution of marriage may be presented to the District Court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Indian Divorce (Amendment) Act, 2001, on the ground that they have been living separately for a period of two years or more, that they have not bean able to live together and they have mutually agreed that the marriage should be dissolved.” 8. A careful perusal of Sub-section (1) of Section 10A of the Act of 1869 would show that in order to maintain an 3 2015 SCC Online Bom 5743 4 (2004) 6 SCC 254 5 application for dissolution of marriage by mutual consent, the parties must be living separately for a period of two or more years mutually agreeing thereby that the marriage should be dissolved. 9. The constitutional validity of Section 10A of the Act of 1869 came up for consideration before the Kerala High Court in the matter of Saumya Ann Thomas (supra) wherein it has been declared unconstitutional and it has been held that the stipulation of living separately for two years for filing application for mutual divorce is arbitrary and the same has been read down to a period of one year. Paragraph 46 of the judgment states as under :- “46. In the result: (a) This writ petition is allowed. (b) The stipulation in S.10A(1) of the Divorce Act that the spouses must "have been living separately for a period of two years or more" is declared to be unconstitutional as the stipulation of the period of "two years" therein violates the fundamental rights to equality and the right to life under Arts.14 and 21 of the Constitution. (c) To save the provision and to avoid the vice of unconstitutionality the period of "two years" stipulated in S.10A of the Divorce Act is read down to a period of "one year". (d) The common impugned order passed by the court below is set aside. It is found that the petitioners are entitled to a decree for divorce under S.10A of the Divorce Act. (e) Invoking the powers of the Family Court under S.10A of the Divorce Act as so read down, the marriage between the petitioner and the second respondent solemnized on 6/4/08 is hereby dissolved under Sec.10A of the Divorce Act.” 6 10. The declaration of Section 10A of the Act of 1869 to be unconstitutional by the Kerala High Court in Saumya Ann Thomas (supra) has been followed with approval by the High Court of Karnataka in the matter of Shiv Kumar (supra) as well as by the Bombay High Court in the matter of Lancy Leo Mendonka (supra). 11. Now, the question that arises for consideration is, ‘whether the declaration of Section 10A of the Act of 1869 to be unconstitutional and the stipulation of living separately for two years which has been read down to one year would be operative and applicable to the Family Courts within the State of Chhattisgarh ?’ 12. Their Lordships of the Supreme Court, in the matter of Kusum Ingots (supra), have clearly held that an order passed on a writ petition questioning the constitutionality of a parliamentary Act, whether interim or final keeping in view the provisions contained in clause (2) of Article 226 of the Constitution of India, will have effect throughout the territory of India subject, of course, to the applicability of the Act. 13. In view of the authoritative pronouncement of the Supreme Court in the matter of Kusum Ingots (supra), it is well- settled that the decision of Kerala High Court in the matter of Saumya Ann Thomas (supra) declaring Section 10A of 7 the Act of 1869 to be unconstitutional and the stipulation of living separately for two years for filing application for dissolution of marriage by mutual consent, which has been read down to one year, would be applicable all throughout India including the Family Courts within the State of Chhattisgarh. The Family Court, Bilaspur ought to have followed the said pronouncement of the Kerala High Court in Saumya Ann Thomas (supra) and should have had read down the stipulation of living separately for a period of two years before filing application of dissolution of marriage by mutual consent to one year. In that view of the matter, the impugned order passed by the Family Court holding the application for dissolution of marriage filed by the appellants herein to be premature is hereby set aside. 14. At this stage, learned counsel for the appellants submits that since the appellants have also not completed the period of one year of living separately as per the provision contained under Section 10A of The Act of 1869 read with the decision rendered by the Kerala High Court in Saumya Ann Thomas (supra), therefore, they may be granted the liberty to file application for dissolution of marriage by mutual consent after living separately for a period of one year, which is absolutely in accordance with law and is stated to be fair by learned Amicus curiae. 8 15. Accordingly, this appeal is allowed to the extent indicated herein-above, with the aforesaid liberty reserved in favour of the appellants, leaving them to bear their own cost(s). 16. Before parting with the record, we appreciate the valuable assistance rendered by Mr. Rahul Tamaskar, who appeared as learned Amicus Curiae in short notice. D/- SD/- SD/- (Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) JUDGE JUDGE Harneet