Written by:Adv. Pooja Gupta

Judicial Separation under Hindu Law India

Judicial Separation sec. 10 of the H.M.A (Hindu Marriage Act, 1955): Deals with Judicial Separation. A party will be entitled to a decree of divorce if a decree of judicial separation has already been passed and the other party has not resumed cohabitation within one year thereafter, where a wife has obtained the decree for judicial separation.

Section 10(1) says that either party may present a petition to the district court praying for a decree of separation on any of the grounds specified in sub-section (1) of section 13 and in the case of a wife can also present a  divorce petition on any grounds which is specified in sec 13(2).

Section 10(2) of the act lays down ”where a decree for judicial separation has been passed, it shall, no longer, be obligatory for the petitioner to cohabit with the respondent, the court may on the application by petition of either party and on being satisfied with the truth of the statement made in such petition, rescind the decree if it considers it just and reasonable to do so”.

Now, under the marriage laws (amendment) act, 1976, the grounds for judicial separation and divorce are effectively the same. Whatever the grounds of divorce under the amended section 13 (1)  and 13(2) of the amendment act, 1976 have been laid down, they have been similarly adopted in section 10.

Grounds for Judicial Separation and Divorce H.M.A, 1955

Adultery

Where the other party has, after the solemnization of the marriage had voluntary sexual intercourse with any person than his or her spouse.

Cruelty

Where the other party has treated the petitioner with cruelty, after passing the marriage laws (amendment) act, 1976 cruelty also becomes a ground for divorce. The term cruelty has nowhere defined in the act. However, for the purposes of establishing an act of cruelty, it should be so serious that cohabitation becomes impossible. It should be somewhat more serious than the ordinary wears and tears of routine marital life. Where the other party has treated the petitioner with cruelty.

Questions of Legal Cruelty

Justifying judicial separation or divorce on that ground may be considered under the following heads: –

Actual or threatened physical violence:- Actual violence or threat of violence of such a character as to give rise to an apprehension of danger to life, limb, or health will undoubtedly constitute cruelty.

Verbal abuse and insults:- The continual use of abusive and insulting words indulged in to bring shame and mental agony to the insulting words indulged to bring humiliation and cognitive agony to the other spouse may amount to legal cruelty.

Excessive sexual intercourse:- Excessive/enormous sexual intercourse by the husband against the wish of the wife.

Refusal of intercourse:- If sexual intercourse is unreasonably refused and the refusal is persisted in for a long time, it will be a ground for holding that there is legal cruelty.

Desertion

When the petitioner has been deserted continuously for a period not less than two years immediately preceding the presentation of the petition for judicial separation or divorce, such petition may be granted.

Requisited to Constituted Desertion

In order to constitute desertion, the following facts should be established: –

  • The separation must be without reasonable cause.
  • This state of affairs must have continued for two years.
  • The spouses must have parted or terminated all joint-living.
  • The desertion must have been without reasonable causes.
  • The deserted spouse must not have agreed to the separation, and
  • The deserting spouse must have the intention to desert the other spouse.

Conversion

A decree for divorce can be obtained by a petitioner, where the opposite party has ceased to be a Hindu by conversion to another religion e.g. Islam, Christianity, Judaism, or Zoroastrianism.

Unsound Mind

Where the other party has been incurable unsoundness of mind or has been continuously or intermittently from a mental disorder cannot reasonably be expected to live with the respondent.

Leprosy

Where the spouse presenting the petition has shown that the other party has been suffering from a virulent and incurable form of leprosy.

Venereal disease

It is essential for the petitioner to prove that the opposite party has been suffering from a venereal disease in a communicable form.

Missing spouse/Presumed death

Where the other party has not been heard of as being alive for a period of seven years or more, those persons who would naturally have heard of him that party been alive. On these grounds court directly provides divorce instead of judicial separation.

Renunciation of World

Where the other party renounced the world by entering any religious order.

Additional Grounds of divorce available to wife only

In the case of the wife, she would be entitled to a decree of Judicial Separation and Divorce on the following additional grounds [Section 13(2)]

Bigamy

In case of any marriage solemnized before the commencement of this act where the husband has married again before the commencement of this act, or the other wife was alive at the time of solemnization (to celebrate a marriage with religious rites) of the marriage, or

Rape, Sodomy, or Bestiality

Where the husband, since the solemnization of the marriage been guilty of rape, sodomy or bestiality, or

Decree or order awarding maintenance

Where a decree has been passed against the husband awarding maintenance to the wife and cohabitation has not resumed for a period of one year, or

Repudiation of the marriage

Where her marriage was solemnized before she attained the age of fifteen years and she repudicated the marriage before that age but before attaining the age of eighteen years. Section 10(2) provides that it shall no longer be obligatory for the petitioner to cohabit with the respondent where the decree for judicial separation has been passed.

But the court may, on the application by petition of either party and on being satisfied with the truth of the statements made in such positions, rescind the decree, if it considers it just and reasonable to do so.

Effect of Decree

A decree of judicial separation does not end the legal bond of marriage between the parties. However, it gives legal authority to the petitioner to live separate from the respondent and the latter can no more insist that the former cohabit and children may be decided by the court while deciding on a petition for judicial separation and even earlier whole the petition is pending for disposal.

If the cohabitation has not been resumed for one year on more following a decree of judicial separation, it is a ground for divorce available to either party. By implication of section 10(2), it appears that in the absence of a decree for judicial separation it is not legally obligatory for the parties to cohabit with one another.

Distinguished between Judicial Separation and Divorce

Divorce is the permanent dissolution of the marriage between parties. And judicial separation temporarily suspends the marriage relationship of the parties.

In the case of divorce, the mutual rights and obligations of husband and wife cease to continue. But in case of judicial separation, the mutual rights and obligations of husband and wife are suspended only.

Divorce gives the right to the parties to remarry. And Judicial Separation does not give the right to the parties to remarry because the marital tie continues.

After divorce If the husband’s intercourse with his former wife, without her consent, is a punishable offence under section 376 of I.P.C. But In-Case of Judicial Separation, If the cohabitation does not take place between the parties for a period of one year or upwards, either of the parties may seek for divorce under sec. 13 (ia) (i) of the act. So cohabitation is expected for reconciliation amongst the parties in case of judicial separation.

Read more

Rules under Hindu Marriage Act 1955 India

Women Rights under the Constitution of India

Examination of Witness as per the Indian Evidence Act,1872

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