Sunday, 21 Apr 2019

Parents Cannot Be Separated by Force, but Wife Can be

In a landmark ruling, the Supreme Court in 2016, in the case of Narendra v. K. Meena, held that when a wife consistently forced her husband to stay away from her parents, this action of the wife was torturous and cruel and hence, was a valid ground for affording a divorce to the husband.

For example, if a woman (residing in the northern parts of India) forces her husband to shift to another city, say, for example Surat, in order to stay away from the parents of the husband, the husband can with the help of the divorce lawyers in Surat, obtain a divorce from the wife.

This blog seeks to analyse the irony of the two situations, wherein, in the first case, parents cannot be forced to stay separately from the husband, the wife can, by an order of the court, be asked to stay separately.

Section 10 of the Hindu Marriage Act, 1955 allows a person to seek a decree of judicial separation from the court, on all those grounds, on which a divorce can be sought, that is, on adultery, desertion, insanity, cruelty, disappeared for the past 7 years, renunciation of the world, venereal disease, leprosy, HIV etc. Once such a decree is successfully granted, the petitioner spouse is no longer under any kind of legal obligation to stay or reside with the other spouse. The object behind such a provision is to actually save the institution of marriage. The legislature was of the opinion that allowing the couple to legally stay separate for certain while, without any solid adverse consequences, will give them time away from the ordinary wear and tear of married life and also enough time, to think over the problems between and the possible solutions. However, that is rarely the intention behind the parties when they apply for judicial separation.  More often than not, it is a way to get rid of the other spouse, without there being any change in their relationship status legally, as the status of marriage is maintained.

In fact, the other spouse cannot even claim divorce on the grounds of desertion if the spouse does that. However, if after 2 years since the occurrence of judicial separation, if co-habitation between the couple has not been resumed, the other spouse can claim divorce on that ground. However, the effect of a decree of judicial separation is that one of the spouses can separate from the other spouse, with no legal consequences whatsoever, except for divorce, in extreme cases, that too after a threshold period of certain time. Therefore, if a husband files for judicial separation, in a way, he forcing his wife to live separately than from him as she does not possess legal remedy against him in such a case. She cannot force him to stay with her. Also, in cases of contested divorce, if the husband wants the divorce, but the wife doesn’t, and if the husband manages to get the divorce, the wife will be forced to separate from the husband. It is sad that while the parents cannot be forced to live separately, the wife is given that status in law, as she can very easily be forced to separate.