THOMAS KURIAKOSE Vs. ABRAHAM MARY
LAWS(KER)-2003-3-109
HIGH COURT OF KERALA
Decided on March 21,2003

THOMAS KIIRIAKOSE Appellant
VERSUS
ABRAHAM MARY Respondents

JUDGEMENT

- (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 S.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. Moncy 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 S.22 of the Indian Divorce Act coupled with S.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 S.24 & S.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 S.10 of the Act. S.22 of the Indian Divorce Act reads: 22. Bar to decree for divorce a mensa et toro; but judicial separation obtainable by husband or wife. - No decree shall 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 hereinafter mentioned.
(3.) A reading of S.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. S.24 and 25 of the Act deals with the effect of the order of judicial separation. S.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 S.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 S.24 & S.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 Kartn. 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 S.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 et toro means literally from table and bed (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 S.22 of the Act. Thus, a divorce a mensa et toro has to be distinguished from a regular divorce and also from a decree for a divorce a vinculo matrimonii, which means a decree for nullity. 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 S.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 S.22 of the Indian Divorce Act also had been considered. It was held: Under S.22 if adultery or cruelty or desertion without reasonable cause for two 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 S.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 S.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 S.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 S.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. Infact, S.7 of the Indian Divorce Act cannot have any effect so far as the present case is concerned as S.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 S.22 of the Indian Divorce Act. A decree passed for judicial separation does not have the effect of a divorce in view of S.22 of the Divorce Act though the decree have the effect of a divorce a mensa et toro for the specific purposes mentioned under S.24 and S.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.;


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