Thomas Kuriakose vs Abraham Mary on 21 March, 2003

    Thomas Kuriakose vs Abraham Mary on 21/3/2003

ORDER

   R. Rajendra Babu, J.

   1. Thomas Kuriakose, filed O.P. No. 1695/1999 against his wife Abraham Mary
for a decree of judicial separation. Both the spouses were employed at Italy.
There was already a decree for judicial separation from a court of Italy. On the
basis of the above order of the Court of Italy, this court also passed a decree
for judicial separation on 31.7.2000. After two years of passing of the decree
for judicial separation, the husband filed the present C.M.P. for declaring that
the above decree for judicial separation has the effect of divorce of the
marriage between the petitioner and the respondent. The respondent filed a
counter affidavit contending that the decree for judicial separation does not
have the effect of divorce and that the petitioner is not entitled to any such
declaration.

   2. The learned counsel for the petitioner - husband submitted that in view of
Section 22 of the Indian Divorce Act, an order passed for judicial separation
will have the effect of divorce and as such the petitioner is entitled to get a
declaration to that effect. Reliance was placed on a decision of a Learned
single Judge of this Court in Raji C. Money v. Lissa K. Jacob (2001 (1) KLJ
650). That was an application filed by one of the spouse and for setting aside
the judgment already passed by this Court for grant of a decree of nullity of
marriage. The Original Petition was one for declaring the marriage as null and
void. But, while rejecting the above prayer, the Court passed a decree for
judicial separation. Later an application was filed for setting aside the
judgment granting the decree for judicial separation and for grant of a decree
of nullity. While dismissing the same, the Court observed that in view of
Section 22 of the Indian Divorce Act coupled with Section 7 of the Matrimonial
Causes of 1857 of England, the decree for judicial separation will have the
effect of a decree of divorce. The learned counsel for the respondent submitted
that a decree for judicial separation passed by this Court cannot have the
effect of divorce as contemplated by law, but an order for judicial separation
can be treated as a decree for divorce a mensa et toro having the legal effects
as mentioned in Sections 24 & 25 of the Act. It was further submitted that the
above decree for judicial separation cannot have all the legal effect of a
divorce as contemplated under Section 10 of the Act. Section 22 of the Indian
Divorce Act reads:

     "22. Bar to decree for divorcee mensa ettoro; but judicial separation
obtainable by husband or wife.- No decree shali hereafter be made for"a divorce
a mensa et toro, but the husband or wife may obtain a decree of judicial
separation, on the ground of adultery, or cruelty or desertion without
reasonable excuse for two years or upwards, and such decree shall have the
effect of a divorce a mensa et toro under the existing law, and such other legal
effect as hereinafiermentiorted."

   3. A reading of Section 22 would make it clear that a decree of judicial
separation on the ground mentioned therein shall be treated as a decree of
divorce a mensa et toro under the existing law and shall have the legal effect
as hereinafter mentioned. Sections 24 and 25 of the Act deals with the effect of
the order of judicial separation. Section 24 says that the wife shall be
considered unmarried with respect to the property which she may acquire or which
may come to or devolve upon her during the existence of the order of judicial
separation. Likewise, by Section 25, she shall be considered as an unmarried
woman for the purposes merely of contracts and wrongs and injuries and for suing
or being sued. The decree for judicial separation shall be treated as a divorce
only for the above purposes mentioned in Sections 24 & 25 and none of the
parties will be entitled to remarry during the substantive of the decree for
judicial separation. The effect of a decree for judicial separation had been
considered by a Division Bench of Karnataka High Court in R.S. Manual Raju v.
Mary Sara (AIR 1982 Karnataka 235) that was a case where the Principal Civil
Court of Shimoga passed an order for judicial separation and made a reference to
the High Court for confirmation. The effect of Section 22 of the Indian Divorce
Act had been considered and it was held:

     "S.22 of the Act, no doubt, states that a decree passed under the Section
for judicial separation shall have the effect of a divorce 'a mensa et toro'.
That does not mean that it will have the effect of a decree for divorce. 'A
mensa ettoro' means literally 'from table andbed' (from board and bed'). It is a
term used to desirable a partial divorce in a case in which the marriage was
just and lawful; but, for some supervening cause, such as the commission of
adultery or cruelty by the husband or wife, it becomes improper or impossible
for them to live together. The partial divorce was earlier effected by the
Ecclesiastical Court. It only caused the separation of the marriage so that
neither of them could marry during the life of the other. That is now
substituted by Section 22 of the Act."

     "Thus, a divorce 'a mensa et toro' has to be distinguished from a regular
divorce and also from a decree foradi vorce 'avinculomatrimonii', which
meansadecree fornullity. Shri. A.C. Patil, the Civil Judge, perhaps could not
comprehend the distinct concepts, in making the misconceived reference".

   A Division Bench of Andhra Pradesh High Court also considered the effect of
Section 22 of the Indian Divorce Act in Amarthala Hemalatha v. Dasari Balu
Raajendra Varaprasad (AIR 1990 A.P, 220). That was a case where a decree for
dissolution of marriage was passed by the District Court on the ground that an
order of judicial separation was already passed and the spouses had not resumed
cohabitation within a specified period after the passing of the decree for
judicial separation. A Division Bench of Andhra Pradesh High Court, when the
matter came up for confirmation held that the order for judicial separation was
not a ground contemplated by the Indian Divorce Act for the dissolution of the
marriage though such a ground had been contemplated in the Hindu Marriage Act as
well as in the Special Marriage Act. There, the effect of Section 22 of the
Indian Divorce Act also had been considered. It was held:

     "Under Section 22 if adultery or cruelty or desertion without reasonable
cause for wo years or upwards, is proved, the husband or wife may obtain only a
decree of judicial separation. Such a decree shall have the effect only of a
divorce 'a mensa et toro', under the then existing law. In other words there is
no right to marry another person while the former spouse still lives under
Section 24 the wife is considered unmarried with respect to the property which
she may acquire or which may come to or devolve upon her while under Section 25
she shall be considered as an unmarried woman for the purposes merely of
contracts and wrongs and injuries and for suing or being sued. The decree for
judicial separation does not have any other effect and cannot lead to a decree
for total dissolution of marriage while the former spouse lives."

   The application of Section 7 of the Indian Divorce Act also had been
considered by the Division Bench and relying on the decision of the Supreme
Court in Reynold Rajamoni v. Union of India (AIR 1982 SC 1261), it was held that
Section 7 did not have the effect of engrafting into the Indian law, the
substantive grounds for divorce which were introduced in the English Statute Law
from time to time. In fact, Section 7 of the Indian Divorce Act cannot have any
effect so far as the present case is concerned as Section 7 has already been
deleted from the statute by the amendment Act of 1999. In view of the above
decisions of the High Courts of Karnataka & Andhra Pradesh, I respectfully
disagree to the view taken by the learned Single Judge of this Court in 2001 (1)
KLJ 650. I respectfully adopt the view taken by the Division Bench of Karnataka
and Andhra Pradesh High Courts in construing Section 22 of the Indian Divorce
Act. A decree passed for judicial separation does not have the effect of a
divorce in view of Section 22 of the Divorce Act though the decree have the
effect of a divorce a mensa et toro for the specific purposes mentioned under
Sections 24 and 25 of the Act. Hence, the petitioner is not entitled to the
declaration as prayed for. If the petitioner has to obtain a divorce, he has to
approach the court by filing the necessary application in accordance with the
provisions of law and he cannot claim divorce on the basis of the decree of
judicial separation, and hence this C.M.P. is liable to be dismissed.

   C.M.P. 51945/02 is dismissed.