Separated for years? Then divorce, says apex court

September 3rd, 2009 - 2:53 pm ICT by IANS  

New Delhi, Sep 3 (IANS) The Supreme Court, while dissolving a marriage, has said it is “not acceptable” that a husband and wife go on living separately for years because one of them does not agree to a mutual divorce.
A bench of Justice Altmas Kabir and Justice Cyriac Joseph gave this ruling Tuesday, while dissolving a sour marriage between a man and his wife, who neither wanted to live with him nor agreed to divorce him.

To give this ruling, the apex court had to resort to its extraordinary power conferred by Article 142 of the constitution that empowers it to dispense with legal technicalities, rules and procedures to do complete justice.

“The stand of the wife that she wants to live separately from her husband but is not agreeable to a mutual divorce is not acceptable to this court,” said the bench, ordering dissolution of the marriage of the couple, who had been living separately for more than seven years.

The apex court gave its verdict on a lawsuit by Anil Jain, a resident of Chhindwara in Madhya Pradesh, seeking divorce from his estranged wife Maya Jain. The two were married in June 1985, but the marriage turned sour.

With their marriage becoming irreconciliable, the couple arrived at a mutual agreement as per which the husband transferred certain portion of his property to his wife on the understanding that she would give her consent to divorce and let a family court pass a decree of divorce.

The couple, accordingly approached a Chhindwara court, invoking provisions of the section 13B of the Hindu Marriage Act, which allows a couple to take divorce with mutual consent.

After the couple filed their joint lawsuit for divorce, the court asked them to wait for the mandatory “cooling off period” of six months before taking a final call on their divorce petition.

But the wife did a volte face in court after the cooling off period and withdrew her consent to the divorce. This resulted in the court dismissing the couple’s petition.

The husband subsequently approached the Jabalpur bench of the Madhya Pradesh High Court, which too dismissed the appeal. It was against this ruling of the high court that Jain had approached the apex court.

In its ruling, the apex court said that in normal circumstances, with the wife withdrawing her consent for the divorce, the husband could have been asked to start the divorce proceedings on a clean slate on the grounds that his wife did not want to live with him.

But the court pointed out that “living separately being one of the grounds for divorce by mutual consent”, the marriage is liable to be dissolved by the apex court itself.

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