Judicial Separation under Hindu Law

By | June 8, 2017

Introduction

Judicial Separation is an instrument devised under law to afford some time for introspection to both the parties of a troubled marriage. Law allows an opportunity to both the husband and the wife to think about the continuance of their relationship while at the same time directing them to live separate, thus allowing them the much needed space and independence to choose their path. It is the last recourse available to both the spouses before the actual legal breakup of marriage i.e., divorce. It is basically a temporary suspension of marital rights between the spouses as a result of decree passed by the Court on any one of the grounds mentioned in the Section.

Section 10(1) provides that either party to Marriage may present a petition praying for a decree of judicial separation on any of the grounds specified in Section 13(1). Further this section also provides additional grounds to wife besides the above ground as mentioned in Section 13(2) of the Act. Thus, it is clear that the judicial separation can be seeked on the grounds mentioned for divorce.

Thus under Section 10 now the grounds of judicial separation are:-

  1. Adultery – Under the Marriage Laws (Amendment) Act, 1976, the expression “living in adultery” has been dispensed with and it has been replace* by a simple requirement of adultery, that is, where the other party has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse. And thus, even a single act of adultery may be sufficient now for the relief under this head.
  2. Cruelty – Cruelty is a ground for matrimonial reliefs under all matrimonial laws. Where the other party has treated the petitioner with cruelty, the petitioner can claim the relief of judicial separation. The term cruelty is nowhere defined, nor is it capable of any definition. It has no parameters, it is subjective and relative. It would differ from place to place, from person to person and would also vary depending upon social and cultural backgrounds of the parties.
  3. Desertion – Judicial separation may be granted where the other party has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition. The expression “desertion” means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party and includes the wilful neglect of the petitioner by the other party to the marriage.
  4. Unsoundness of Mind – to get relief on this ground the petitioner has to .prove that, (1) the respondent has been incurably of unsound mind or, has been suffering continuously or intermittently from mental disorder of and (2) the nature and degree of the disease is such that the petitioner cannot reasonably be expected to live with the respondent. Both the elements must be established for the grant of the relief. The expression ‘mental disorder’ means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind, and includes schizophrenia. Further, the expression psychopathic disorder means a persistent disorder or disability of mind which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party, and whether or not it requires or is susceptible to medical treatment.
  5. Conversion/Apostasy – If a party to Marriage has renounced the Hindu religion and embraced some other religion, it is a ground for the other party to petition for judicial separation. If a person leaves the Hindu religion to embrace some other religion that he goes out of the fold of the definition of Hindu as given under Section 2 of the Act, then he is said to have converted himself.
  6. Virulent and Incurable Leprosy – One of the grounds for Judicial separation is that the respondent has been suffering from a virulent and incurable form of leprosy. The expression ‘Virulent’ has been interpreted as malignant or Venomous.
  7. Venereal Disease – Judicial separation is obtainable if the respondent has been suffering from venereal disease in a communicable form.
  8. Renunciation of World – Under Hindu law renouncing from the worldly affairs by entering any religious order amounts to civil death and it may amount to desertion of the petitioner.
  9. Presumed death (Missing Spouse) – a person may present a petition for judicial separation on the ground that the other party to the marriage has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of him or she had that other party been alive.

ADDITIONAL GROUNDS FOR WIFE TO CLAIM DECREE

The Section has further laid down additional grounds to wife to claim a decree for the judicial separation on the ground of:-

  • Bigamy – In the case of a marriage solemnized before the commencement of this Act, a wife is entitled to present a petition for judicial separation on the ground (a) that the respondent husband had married again before the commencement of the Act or (b) that any other wife of the respondent husband to whom he was married before such commencement was alive at the time of the solemnization of the marriage of the petitioner with the respondent. A petition by a wife for judicial separation will lie on either of these grounds provided that the other wife is alive at the time of the presentation of the petition.
  • Rape, Sodomy or Bestiality – A wife can seek judicial separation on the ground that since the solemnization of the marriage the husband has been guilty of rape, sodomy or bestiality.
  • Non-resumption of Cohabitation after decree or Order of Maintenance, A wife can seek judicial separation where a suit under Section 18, HINDU ADOPTION AND MAINTENANCE ACT or in a proceeding under Section 125 Cr.P.C., a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards.
  • An option of Puberty (Repudiation of the Marriage) – If a girl is married before she completes the age of 15 years she is given an option to repudiate that marriage after completing the age of 15 years. This option must be exercised before attaining the age of 18 years. The Act provides no particular form of repudiation. It may be by, filing a petition or by an overt act. If she has exercised this option to repudiate her marriage she can petition for judicial separation or divorce on this ground after completing 18 years of age.

Though section 10 of the Hindu Marriage Act does not provide any time as to how long judicial separation can last. But section 13 of the Act provides that if there is no resumption of cohabitation between the parties one year after the decree for judicial separation is passed, the parties can get a decree for divorce on this ground itself. But divorce on this ground will be given only when one year has expired after the passing of the decree for judicial separation and not earlier. The reason for this is that one year is a long period and it provides sufficient time to the parties for reconciliation or to arrive at a decision. If the parties fail to overcome their differences within this period, then there is no fun in allowing the legality of the marriage to just linger on when in substance the relationship of marriage has long expired.

It is to be noted, however, that if the parties do agree to resume cohabitation any time after the passing of the decree for judicial separation, they can get the decree rescinded by applying to the court. The Act does not refer to any specific grounds on which a decree for judicial separation can be annulled or rescinded. Section 10(2) however, empowers the Court to rescind the decree for judicial separation if it considers it just and reasonable to do so. However, Courts have repeatedly warned that this power of rescission has to be exercised with great circumspection and not in a hurry and only after satisfying themselves that it would be just and reasonable to allow such rescission.

DIFFERENCE BETWEEN JUDICIAL SEPARATION AND DIVORCE

Although the procedure of dealing defended and undefended proceedings for both judicial separation and divorce are similar, yet there are certain differences between them.   Judicial Separation does not terminate marriage whereas in divorce the parties are no more husband and wife and hence the marriage ends.

  • While undertaking proceedings for judicial separation, the court does not have to consider that the marriage is permanently closed or broken down whereas in divorce it is required while presenting the petition.
  • Both the parties can file for judicial separation any time post marriage whereas in the case of divorce the parties can only file for divorce only after completion of one year of marriage.
  • A judicial separation goes through one stage judgment procedure, however; divorce goes through a two stage judgment process.
  • There are certain provisions in Matrimonial Causes Act 1973 that are applicable to divorce but are not applied to judicial separation petitions irrespective of going through a two or five year separation period.
  • Judgments with respect to Wills are not applicable in a case of Judicial separation. In case the parties are undergoing a separation time and if one of the spouses dies then the existing spouse will not be benefited out of it and thus the property will devolve.
  • A Decree Absolute of Divorce brings a marriage to an end and Judicial Separation does not. However, it is more than a husband and wife living apart. A Decree of Judicial Separation can be sought on one of the five facts that are available for divorce but it is not necessary to prove that the marriage has irretrievably broken down.
  • In Divorce, there are two Decrees: Decree Nisi and Decree Absolute. In Judicial Separation there is one Decree pronouncing Judicial Separation. The parties remain married and are therefore not able to remarry. The Court is able to make the range of financial orders that are available on Divorce, save for Pension Sharing or Pension Attachment Orders
  • In Divorce, there are two Decrees: Decree Nisi and Decree Absolute. In Judicial Separation there is one Decree pronouncing Judicial Separation. The parties remain married and are therefore not able to remarry. The Court is able to make the range of financial orders that are available on Divorce, save for Pension Sharing or Pension Attachment Orders
  • The Decree of Judicial Separation has the same effect as a Decree Absolute of Divorce upon a Will. The spouse can no longer take any benefit under the Will unless there is a new will specifically stating they are to do so.

Hence, Judicial Separation is a process wherein, the Court provides a final turn to a couple seeking a divorce, to try resolving their differences by living separately, before the initiation of divorce proceedings. This gives time for introspection and resolving the matrimonial disputes and misunderstanding between the couple.

Author – Monika Sharma

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