Judicial Separation under section 22 of Divorce Act

Under section 10, Hindu Marriage Act, section 34, Parsi Marriage and Divorce Act and section. 23, Special Marriage Act, the grounds to sustain a claim for divorce are also, by and large, grounds for a claim for judicial separation. Under ss. 10 and 10A of the Divorce Act, after 2001, the grounds of divorce are eleven

in number, but under section 22 the only grounds for judicial separation are three of these eleven grounds viz., adultery, cruelty and desertion. In other words it is easier for a Christian couple to sever the matrimonial bond by a decree for divorce than merely separating thus keeping the matrimonial bond alive with a possibility of reconciliation a position in law which is difficult to rationalize having regard to the object and purpose of judicial separation of “maintaining the matrimonial relationship and not to encourage snapping of such relationship.

Then again, non-resumption of co-habitation for a period of one year or more after a decree for judicial separation is, by itself, a ground for divorce under the aforesaid three Acts—vide section 13(1A)(i), Hindu Marriage Act, section 32A(i), Parsi Marriage and Divorce Act and section 27(2)(i), Special Marriage Act. But there is no such provision in the Divorce Act and as such Christian spouses cannot get their marriage dissolved even after such judicial separation even though the marriage has otherwise come to an end for all practical purposes.

This has been pointed out by the Supreme Court in Jorden Diengdeh v S.S.Chopra, which noted that under the Divorce Act unlike other Matrimonial Laws, a person obtaining a decree for judicial separation will have to remain content with that decree and cannot seek to follow it up with a decree of divorce, after the lapse of any period of time. No heed was paid to this obvious inequity by Parliament and even after the amendment in 2001, a couple already judicially separated would have to re-establish the same grounds in separate proceedings for divorce. When spouses belonging to other religions are granted dissolution on this ground, there is no constitutionally justifiable reason for denying tne same right to Christians.

The denial of the right to Christian spouses is oppressive, unfair, inequitable and amounts to discrimination only on the ground of religion contrary to Art. 15(1).

Another clear instance of clumsy and confused drafting in section 22 is that after declaring in the opening words that no decree shall hereafter be made a divorce a mensa er more , it proceeds to provide that the husband or wife may obtain a decree of judicial sepzzration, as if divorce a mensa et tlloro and judicial separation are two different concepts. Divorce vinculo matrimoni is a divorce which dissolves the marital tie and is known as Divorce in modern law. Divorce a mensa et thoro does not dissolve the marriage, but while keeping the marital tic unaffected, allows the spouses to live separately from bed and hoard and is referred to in modern law as judicial separation.

 

Husband not entitled to inherit wife’s property, wife not disentitled:

The marital tie of a spouse, who has obtained a decree for judicial separation against the other spouse, is not thereby dissolved and even though the mutual rights of those spouses against each other are circumscribed to a great extent, they nevertheless remain lawful spouses. Where a decree for judicial separation is passed under the Hindu Marriage Act or the Parsi Marriage and Divorce Act or the Special Marriage Act, a separated spouse does not lose the right to inherit the properties of the other spouse under the respective laws of succession.

But section 24 of the Divorce Act 1869 provides that on the death of a separated wife, her properties shall “go as the same would have gone, if her husband had been than dead”.

Since under the other laws, a separated husband does not lose his right to inherit the properties of his separated wife, the discrimination against the Christian husband stares us in the face.

A separated Christian wife, however, does not lose her right to inherit the properties belonging to her separated husband.

The law on the point is, therefore operating unequally against the husband and he is thus denied equality before law and equal protection of Laws.

For More Details on Christian law and Christian Marriage Act Consult Adv.T.Choudhury at ph no: 09650499965

Also check:
Mutual Divorce in India
Divorce Lawyers in India
Family Laws in India