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(emphasis supplied) The provision is in substance a verbatim reproduction of the provision in Sec.13B of the Hindu Marriage Act, Sec.32B of the Parsi Marriage and Divorce Act and Sec.28 of the Special Marriage Act. The only difference is that instead of the period of two years mentioned in Sec.10A(1) emphasised above, one year is the period of separate residence stipulated in those provisions.

6. The first contention is that the period of two years under Sec.10A(1) and the period of six months under Sec.10A(2) of the Divorce Act must have been waived by the Family Court in its discretion. We find absolutely no merit in this contention at all. Under the body of Sec.10A(1), four conditions must co-exist before an application can be made. They are:

11. From a totally indissoluble institution, winds of change have swept the institution of marriage. Initially divorces on the ground of marital contumaciousness and non-existence of vitals necessary to make a marriage work were recognised by law. But later it was recognised that matrimony is after all a human institution - a bond created by exercise of the free act of will by the partners who are responsible; but fallible individuals who may err and blunder. With this emerged the concept of divorce by mutual consent. When the partners find it impossible to live out their lives with happiness and meaningfully, they were granted the option in law to walk out of such marriage subject to conditions by mutual consent. Today, most modern systems of jurisprudence recognise and accept the right of the spouses to get their marriage dissolved by mutual consent. This transformation in the concept of marriage and its dissolution and acceptance of those altered concepts by the legal systems did not take place one fine morning. Many a battle had to be fought socially and legally before the concept of divorce by mutual consent was accepted by the polity and approved by the legislature. The Indian experiment shows that the Special Marriage Act, 1954 in Sec.28 recognised the concept of  dissolution of a secular marriage by mutual consent. Long later, in 1976 the concept of divorce by mutual consent was accepted and recognised under the Hindu Marriage Act. Still later in 1988 the Parsi Marriage and Divorce Act in Sec.32B accepted and recognised the concept of divorce by mutual consent. To get the concept introduced into the Divorce Act, 1869 we had to wait for a lot more of time. In 2001, after the Courts and the Law Commission incessantly demanded the incorporation of such a provision, Sec.10A of the Divorce Act found its way into the Act. It is thus that the concept of divorce by mutual consent was accepted under the Divorce Act.

12. But when the said provision was incorporated in the Divorce Act, surprisingly instead of a period of one year as the mandatory minimum separate residence, a period of two years was stipulated under Sec.10A(1) of the Divorce Act. It is that stipulation which is challenged before us.

13. It is contended that the incorporation and insistence of a longer period of mandatory minimum separate residence so far as the persons to whom the Indian Divorce Act applies is discriminatory. What is the justification for such a longer period mandatory minimum separate residence for those to whom the Indian Divorce Act applies; it is queried. It is argued that there is absolutely no principle or reason that justifies insistence on  such longer period of separate residence so far as the Christians alone are concerned, to whom the Divorce Act applies. The constitutional mandate of equality is offended, it is urged. The core constitutional value of equality and equal protection of the law Art.14 of the Constitution is offended, contend the counsel. If the mandatory minimum period of separate residence of one year is sufficient for those to whom the secular law of divorce by mutual consent under Sec.28 of the Special Marriage Act, and Hindus to whom Sec.13B of the Hindu Marriage Act and Parsis to whom Sec.32B of the Parsi Marriage and Divorce Act, there is no justification constitutionally acceptable for insisting on a different longer period of mandatory minimum separate residence so far as the Christians to whom Sec.10A of the Divorce Act applies, contend counsel. The learned counsel urge that the stipulation is unconstitutional as it offends the mandate of equality under Art.14 of the Constitution.

15. The learned counsel, in these circumstances, contends that the stipulation of the period of two years in Sec.10A(2) of the Divorce Act must be held to offend the fundamental rights guaranteed under Part III of the Constitution and consequently that stipulation must be held to be unconstitutional. Sec.10A as it now stands must be declared to be unconstitutional under Art.13 of the Constitution. The consequent prayer is that to  avoid unconstitutionality the period of two years stipulated in Sec.10A(2) may be read down to a period of one year, in tandem with the periods stipulated in Sec.28(1) of the Special Marriage Act, Sec.13B(1) of the Hindu Marriage Act and Sec.32B(1) of the Parsi Marriage and Divorce Act.