No decree shall hereafter be made for a divorce a mensa et toro, but the husband or wife may obtain a decree of judicial separation, on the ground of adultery, or cruelty, or desertion 1 *** for two years or upwards, and such decree shall have the effect of a divorce a mensa et toro under the existing law, and such other legal effect as here in after mentioned.
Simplified Explanation
Section 22 of the Indian Divorce Act, 1869 makes a significant change in the legal framework regarding divorce a mensa et toro (a type of legal separation, not a complete dissolution of marriage) and judicial separation. Here, the Act explicitly bars the granting of a decree for divorce a mensa et toro, but allows judicial separation under certain circumstances.
Key Provisions of Section 22
- No Decree for Divorce a Mensa et Toro:
- The Act prohibits the granting of a decree of divorce a mensa et toro (which is essentially a legal separation where the couple remains married but is allowed to live separately).
- Judicial Separation Available:
- Even though divorce a mensa et toro is no longer allowed, a judicial separation can still be obtained by either the husband or the wife.
- Grounds for Judicial Separation:
- A judicial separation can be granted on the grounds of:
- Adultery
- Cruelty
- Desertion for two years or more.
- A judicial separation can be granted on the grounds of:
- Effect of Judicial Separation:
- The judicial separation granted under this Act will have the same legal effect as a divorce a mensa et toro under the previous law. This means the parties are legally separated, but the marriage is not completely dissolved. However, the effect of a judicial separation under this Act is to allow the spouses to live separately, and it may have similar consequences as divorce a mensa et toro in terms of marital obligations.
Explanation of the Provisions
- Divorce a Mensa et Toro vs Judicial Separation:
- Divorce a mensa et toro historically allowed for separation without dissolving the marriage completely. The spouses could live separately but remained legally married. However, under this provision, such a decree is no longer available.
- A judicial separation is now the legal remedy for situations where the parties seek to live apart due to reasons like adultery, cruelty, or desertion. This separation allows the parties to be legally recognized as living apart, without fully dissolving the marriage.
- Grounds for Judicial Separation:
- The grounds for judicial separation listed—adultery, cruelty, and desertion for two years or more—mirror the grounds for divorce under Section 10 of the Act, though judicial separation doesn’t dissolve the marriage.
- Desertion for two years or more: This provision highlights that the spouse seeking judicial separation must prove desertion for a minimum of two years.
- Effect of Judicial Separation:
- Judicial separation grants the legal right for both spouses to live separately, and either spouse can remarry after a period of judicial separation (subject to the grounds for divorce), but the marriage itself is not dissolved.
- The provision clarifies that judicial separation in this context carries the same legal effect as divorce a mensa et toro under the earlier law, meaning that the spouses will be legally recognized as separated.
Practical Implications
- Legal Separation but Not Divorce:
- The Act prevents divorce a mensa et toro, but instead offers judicial separation. While this doesn’t dissolve the marriage, it allows the parties to live separately and resolves issues related to adultery, cruelty, and desertion.
- Remarriage Rights:
- While judicial separation allows the parties to live separately, remarriage is not permitted during the judicial separation period unless the marriage is dissolved.
- Legal Effect:
- Judicial separation offers some of the benefits of divorce a mensa et toro, such as the ability for the parties to live separately and resolve marital issues like adultery, cruelty, and desertion, but does not sever the marriage entirely.
Example of Application
- Adultery: If a wife proves that her husband has committed adultery, she may apply for judicial separation under Section 22. The court may grant the decree, allowing her to live separately while not completely dissolving the marriage.
- Cruelty or Desertion: If either spouse experiences cruelty or has been deserted for more than two years, they may seek judicial separation. This allows the spouse to live separately from the other while maintaining their legal marital status.
Conclusion
Section 22 of the Indian Divorce Act, 1869 effectively replaces divorce a mensa et toro with judicial separation, available on grounds such as adultery, cruelty, or desertion. While the marriage remains intact, the spouses are legally permitted to live apart, and the decree has similar legal effects to the previously available separation. This provision reflects the transition to providing legal remedies for marital problems without fully dissolving the marriage.
