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SHRIKANT NANDAN PRASAD SINHA v. CHANDRA PRABHA SINHA (05/28/87)

decided: May 28, 1987.

SHRIKANT NANDAN PRASAD SINHA, APPELLEE,
v.
CHANDRA PRABHA SINHA, APPELLANT



Appeal from Judgment of the Superior Court of Pennsylvania Entered April 12, 1985 at No. 64 Philadelphia 1983 Affirming Order of the Court of Common Pleas of Delaware County Entered November 10, 1982 at No. 80-14135. 341 Pa. Superior Ct. 440, Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. McDermott, J., files a concurring opinion in which Papadakos, J., joins.

Author: Hutchinson

[ 515 Pa. Page 16]

OPINION OF THE COURT

Appellant, Chandra Prabha Sinha, appeals by allowance a Superior Court order 341 Pa. Super. 440, 491 A.2d 899, which affirmed a decree of divorce entered in the Court of Common Pleas of Delaware County. Appellant argues that a unilateral divorce under our Divorce Code of 1980 requires formulation of an intent to dissolve the marriage before the statute's three year separation requirement begins to run. We agree with appellant that the reconciliation goals of the Divorce Code will be furthered by requiring an independent showing of intent to end the marriage before commencement of the three year period. Because this record shows appellee formed his intent to terminate the marital bonds only fourteen months before his filing suit in Common Pleas, we reverse the order of Superior Court.

On March 11, 1974, appellant and appellee, Shrikant Nandan Prasad Sinha, were married pursuant to a Hindu marriage ritual in Patna, Bihar, India. Appellee came to America in August of 1976 to pursue a master's degree in city and regional planning at Rutgers University in New Jersey. Due to appellant's inability to obtain a visa, she was unable to join or visit her husband in the United States. The parties corresponded regularly and, as late as September 26, 1978, the husband professed his love for his wife. In August 1979, the appellee filed a complaint in New Jersey Superior Court seeking a divorce. This action was voluntarily dismissed subsequent to appellee's move to Media, Delaware County. Appellee then renewed his efforts to secure a divorce with the filing of a complaint in Delaware County Common Pleas on October 15, 1980. The complaint alleged that the parties had lived separate and apart for three years and that the marriage was irretrievably broken pursuant to 23 P.S. § 201(d) (Supp. 1986), Act of April 2, 1980, P.L. 63, No. 26, § 101.

After hearings in November 1981 and March 1982, a general master concluded that Pennsylvania courts enjoyed

[ 515 Pa. Page 17]

    jurisdiction to resolve the matter,*fn1 that the parties had lived separate and apart for three years, and that the marriage was irretrievably broken. Delaware County Common Pleas then dismissed exceptions to the master's report and a decree in divorce was entered on November 10, 1982. Superior Court affirmed.

Appellee first revealed his intention to end the marriage with the filing of the New Jersey complaint in August, 1979. Pennsylvania's unilateral divorce provision, 23 P.S. § 201(d), requires that the parties live separate and apart for three years and that the marriage be irretrievably broken. Physical separation alone will not satisfy the requirements of the statute. The demands placed on marriage by modern society will often force a spouse to leave the marital abode for long periods of time. These separations should not be interpreted as an intent to terminate the marriage. Accordingly, § 201(d) of the Divorce Code requires an intent to terminate the marital relation independent of the physical separation mandated by the statute. As appellee's intent to dissolve the marriage clearly manifested itself only fourteen months before the filing of the Pennsylvania complaint, the three year requirement of § 201(d) has not been satisfied.

Prior to the adoption of the Divorce Code of 1980, Pennsylvania's divorce laws had remained essentially unchanged since 1785. See generally Teitelbaum, The Pennsylvania Divorce Law, Pa.Stat.Ann. tit. 23, commentary at 346 (Purdon 1955). The previous code required a showing that one of the parties to a marriage was at fault before a divorce would be granted. 23 P.S. § 10 (repealed 1980), Act of May 2, 1929, P.L. 1237, No. 430, § 10. The old requirement that

[ 515 Pa. Page 18]

    the plaintiff seeking divorce be "innocent and injured" and that the other spouse be at fault forced many couples to perjure themselves rather than remain in an intolerable marital situation. Gold-Bikin & Rounick, The New Pennsylvania Divorce Code, 25 Vill.L.Rev. 617, 619-20 (1980). Recognizing the difficulties inherent in a fault-only system, the legislature included in the new act a number of "no-fault" provisions. Section 201(b) allows for divorce where one party suffers from a mental disability resulting in confinement for three years. 23 P.S. § 201(b). A divorce may be granted where the marriage is irretrievably broken and both parties consent to the divorce. 23 P.S. § 201(c). A third provision, upon which appellee relied in the instant case, allows a court to grant a divorce where the parties have lived separate and apart for at least three years and upon a showing that the marriage is irretrievably broken. 23 P.S. § 201(d).*fn2

Noting that the definitional section of the 1980 Divorce Code, 23 P.S. § 104, interprets "separate and apart" as the "[c]omplete cessation of any and all cohabitation," Superior Court affirmed Common Pleas' grant of a divorce to appellee based upon the parties' physical separation which commenced with appellee's departure for the United States in August 1976. This was error. Physical separation alone does not satisfy the separate and apart requirement of § 201(d). There must be an independent intent on the part of one of the parties to dissolve the marital union before the ...


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