Friday, February 28, 2014

Christians must wait one year to file for divorce

The separation period required for a Christian couple to file a petition for dissolution of marriage by mutual consent will be one year, the Karnataka high court ruled on Monday.

The court disposed of public interest litigation relating to Section 10A (1) of the Divorce Act, 1869, (applicable to Christians) in the light of a 2010 verdict of a division bench of the Kerala high court.

The Kerala court had read down the 'two years' separation period in Section 10 A to 'one year' so as to bring the same in conformity with Section 13B of the Hindu Marriage Act, Section 32B of the Parsi Marriage and Divorce Act and Section 28 of the Special Marriage Act.

A division bench headed by Chief Justice DH Waghela noted that the Kerala court judgment has become the law of land in the light of an apex court judgment which says that any verdict of a high court holds good for the entire country unless the same is challenged in the apex court.

The bench also noted that the Centre, which was a respondent before the Kerala court, did not challenge the said judgment.

During the hearing, counsel for the Archdiocese of Bangalore said that the dissolution of a Christian marriage by divorce by mutual consent or by decree of court is not at all recognized by the Roman Catholic Church (RCC).

"But realizing that a 'marriage' could be brought about with underlying defects or shortcomings or other disqualification, the RCC has procedure for annulment of marriage. Annulment by church is the only way of termination of marriage recognized by the RCC," he said.

The PIL  challenged the norm under Section 10A of the Divorce act prescribing a two-year period prior to filling of petition for divorce by Christians.

The petitioner contended that a two-year separation period is arbitrary as the Special Marriages Act, the Hindu Marriage Act and the Parsi Marriage Act have a one-year separation period clause.

The Kerala high court had said: "Having considered all the relevant circumstances, we are of the opinion that the stipulation of a higher period of two years of mandatory minimum separate residence for those to whom the Divorce Act applies, in contra-distinction to those similarly placed to whom Sec 13B of the Hindu Marriage Act, Sec 32B of the Parsi Marriage and Divorce Act and Sec 28 of the Special Marriage Act would apply, offends the mandate of equality and right to life under Arts14 and 21 of the Constitution."

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Man granted divorce on grounds of cruelty

Acts of commission by a woman in filing a criminal complaint against her husband and his relatives resulting in the husband being in distress in jail constitute mental cruelty to him and, therefore, he is entitled to get the relief of divorce, the Madras High Court has held.
A Division Bench said this in its judgment while allowing appeals by a person challenging a common order of the Principal Family Court dismissing his petition praying for divorce and allowing his wife's petition seeking restitution of conjugal rights.
He had married the daughter of a former Tamil Nadu MLA here in April 2000 as per Hindu custom.
The appellant contended that his client's wife after initiating criminal proceedings against her husband and nine others was not entitled to obtain the relief of restitution of conjugal rights because of the inconsistency in her case.

Defining cruelty

The judges said what conduct would amount to cruelty was a question of fact to be decided on the facts and particulars of each case. When a divorce was being sought on grounds of cruelty, the acts complained should be so grave and weighty to enable a court to conclude that one party could not reasonably be expected to live with the other.
The Bench said that in its considered opinion, on grounds of cruelty, the whole matrimonial relations should be considered.

SC judgment

Citing a Supreme Court judgment, the Judges observed that cruelty would normally consist not of harmful acts but of injurious reproaches, complaints, accusations or taunts.
It should be established that one party in the marriage, ignoring consequences, had misbehaved, which the other party could not be called upon to endure, and that misconduct had caused injury to health or a reasonable apprehension of such injury.
The Bench pointed out that in the present case, the husband had been put in jail for 22 days for alleged offences of dowry harassment and attempt to murder. Further, the woman had gone to the extent of filing intervening application opposing the bail sought by her husband. The case later ended in acquittal.
Filing of a criminal complaint by the wife against the husband and his relatives, instituting cases based on it and the same ending in acquittal and before that the husband being in distress for 22 days in jail, all these acts of commissions by the wife clearly constituted mental cruelty to the husband who admittedly would have undergone a traumatic experience and suffered humiliation in social circles.
In the present case, the marriage had become emotionally dead. It had irretrievably broken down. Moreover, the element of separation between the parties unerringly point out that there was an intention to bring cohabitation permanently to an end. The differences of opinion should not be considered as temporary passions.
The Bench ruled that the husband was entitled to get divorce.
His wife was not entitled to get the relief of restitution of conjugal rights. It said the marriage would stand dissolved. 

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