Immediate divorce if sex is totally absent
Divorce can be granted immediately after marriage if there is absolute lack of sex between husband and wife, the Kerala high court has held.
This order was given by a division bench comprising of Justices TR Ramachandran Nair and AV Ramakrishna Pillai while considering a petition filed by a couple from Alappuzha district.
In the petition, the couple challenged Alappuzha family court’s decision not to grant divorce to them as they haven’t been living separately for at least one year, since solemnization of marriage. As a minimum of one year of separation is statutory, divorce can’t be granted – the family court had held.
The petitioners, Deepak and Aswathy, got married on May 13, 2011, but have been living separately since June 30, 2011. In the joint petition filed to the high court, the couple pointed out that their marital relationship has broken down irretrievably. According to them, the petition to the family court for divorce was filed upon completing one year, on May 16, 2012.
In denying divorce, the family court had cited the limitation of one year imposed under the law applicable to the couple – section 13B of the Hindu Marriage Act of 1955. According to the family court, they have not been living separately for a period of one year immediately preceding the presentation of the petition.
Times Of India, Kerala Report: http://timesofindia.indiatimes.com/india/Immediate-divorce-if-sex-is-totally-absent-rules-Kerala-high-court/articleshow/19833677.cms
At the high court, the couple’s lawyer S Shanavas Khan argued that even though there is a limitation of one year in section 13B, section 14 grants the power to courts to entertain the application in exceptional circumstances.
According to section 14, courts can grant divorce before the completion of one year’s separation if the “case is one of exceptional hardship to the petitioner or of exceptional depravity on the part of the respondent.”
Setting aside Alappuzha family court’s decision not to grant divorce and ruling in favour of the couple, the division bench of justices Ramachandran Nair and Ramakrishna Pillai held that, “Section 13B is subject to section 14 of the act. Hence, the power under the proviso to section 14 is available. Appellants have pointed out that there was lack of mutual co-ordination and during matrimonial life there was not a single instance of love and affection between the parties. It is clear that the case is one of exceptional hardship to them. It would be impossible for them to continue together. Hence the proviso to section 14 can be safely invoked here and we do so.”