Marital life can be bliss for most of the couples. Two individuals come together to tie the nuptial knot and share their lives, happiness, and sorrow together. They raise a family and work hard to fulfill their social obligations. However, the same marital life can become a nightmare, if there is discord and divergence of behavior, thoughts, and opinions. Divorce is the commonly resorted option by these couples in India. There is another option available to these unfortunate couples and it is called judicial separation.
Judicial separation gives time to rethink about the relationship. It allows both the husband and the wife to live separately and give time to their strained relationship so that it heals with the passage of time. Husband and wife get some time to live alone and think about their relationship. They can continue the marital relationship, if they decide to live as husband and wife after the expiry of this term that is described in the judicial separation. If the parties do not cohabit for a period of one year or upwards after a decree for judicial separation was passed, either party to the marriage can also claim dissolution of the marriage.
The grounds available to both husband and wife for obtaining a decree of judicial separation are as following:
The following grounds are available only for the wife for seeking judicial separation over and above the grounds stated above:
An order for judicial separation does not dissolve the marriage tie between the parties. It affords an opportunity to the parties to reconcile their differences and come together. If there is no reconciliation, the parties are enabled under section 13 (IA) of the Hindu Marriage Act to get an order dissolving the marriage. Kaithakulangara Kunhikannan vs Nellatham Veettil Malu3)
As said, an order for judicial separation under section 10 of the Hindu Marriage Act does not put to an end to the marriage. The relationship of husband and wife is still subsisting and the effect of an order under section 10 of the Hindu Marriage Act is only to permit the parties to the marriage to live apart and it shall no longer be obligatory for either party to cohabit with the other. This is clear from section 10 (2) of the Act.
Mulla's Hindu Law has made the following observation as to the effect of a decree for judicial separation under the Hindu Marriage Act, 1955;
“A legal or judicial separation permits the parties to a marriage to live apart. Sub-section (2) in terms states that where a decree for judicial separation has been passed, it shall no longer be obligatory for either party to cohabit with the other. The effect of the decree is that certain mutual rights and obligations arising from the marriage are as it were suspended and the rights and duties prescribed by the decree are substituted therefore. The decree does not sever or dissolve the marriage tie which continues to subsist. It affords an opportunity for reconciliation and adjustment. It may fall by a reconciliation of the parties in which case the rights of respective parties which flowed from the marriage and were suspended are restored. Where there is no reconciliation and cohabitation is not resumed, it serves after two years of the passing of it, as the basis for the dissolution of the marriage by a decree of divorce.”
The effect of a decree for judicial separation would be that once a decree has been passed, the matrimonial wrong or offence on which it was based whether 'desertion' or 'cruelty' etc. exhausts itself. It would not be open to the parties to look back (after the court has pronounced its judgment and determined that one of the parties was guilty of a matrimonial offence such as desertion) and to say that the matrimonial offence of desertion continues. The correct view would be that once a decree has been passed, the matrimonial offence of desertion would come to an end.
After a decree for judicial separation has been obtained by a spouse then it shall no longer be obligatory for either party to cohabit with the other and it follows that neither party shall be under obligation to make an attempt to come back to his spouse and resume cohabitation. It would not be obligatory for a husband against whom the wife has obtained a decree for judicial separation on the ground of desertion to make efforts to obtain reconciliation or reunion and resumption of cohabitation. Looked at from the point of view of common report as to what is human nature, it would on principle and authority follow that after such a decree, it could not be legitimately expected that the respondent, whose matrimonial wrong has led to the decree for judicial separation and against whom an order has been so made would suddenly acquire angelic qualities and seek to atone for his former sins by making sincere and bona fide attempts to undo or reverse the wrong on the basis of which the decree for judicial separation was obtained against him. It would indeed be illogical to say that the law expects, from a spouse who has deserted the other, sincere attempts to obtain reconciliation after a decree for judicial separation has been passed, while it does not expect the same conduct from him or her before the decree for judicial separation is passed. See: Jethabhai Ratanshi Lodaya vs Manabai Jethabhai Lodaya4)
Sunil Sharma is an advocate; editor and compiler of legal commentaries, having authored more than 40 books.