THOMAS KURIAKOSE Vs. ABRAHAM MARY

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:

(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: