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hindu-law:part-1:judicial-separation

Judicial Separation

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.

Section 10 of the Hindu Marriage Act

  1. Either party to a marriage, whether solemnized before or after the commencement of this Act, may present a petition praying for a decree for judicial separation on any of the grounds specified in sub-section (1) of section 13, and in the case of a wife also on any of the grounds specified in sub-section (2) thereof, as grounds on which a petition for divorce might have been presented.1)
  2. Where a decree for judicial separation has been passed, it shall no longer be obligatory for the petitioner to cohabit with the respondent, but the court may, on the application by petition of either party and on being satisfied of the truth of the statements made in such petition, rescind the decree if it considers it just and reasonable to do so.2)

Grounds of judicial separation

The grounds available to both husband and wife for obtaining a decree of judicial separation are as following:

  1. Adultery: After the solemnization of the marriage, having sexual intercourse with any person other than his or her spouse.
  2. Cruelty: Treating the petitioner with such cruelty as to cause a reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for the petitioner to live with the other party.
  3. Desertion: Desertion of the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition.
  4. Conversion: The other party ceasing to be a Hindu by converting to other religion.
  5. Insanity: The other party being incurably of unsound mind or suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.
  6. Leprosy: The other party suffering from a virulent and incurable form of leprosy.
  7. Venereal disease: The other party suffering from venereal disease in a communicable form; the disease not having been contracted from the petitioner.
  8. Renunciation of the world: Renunciation of the world by the other party by entering any other religious order.
  9. Not being heard for seven years: The other party not heard of as being alive for a period of seven years.

Additional grounds for wife

Section 13(2)

The following grounds are available only for the wife for seeking judicial separation over and above the grounds stated above:

  1. Remarriage of husband: If the marriage is solemnized before the Hindu Marriage Act and the husband has again married another woman in spite of the first wife being alive.
  2. Husband guilty of unnatural sex: If the husband has been guilty of rape, sodomy or bestiality.
  3. Non-resumption of cohabitation: If a decree or order has been passed against the husband awarding maintenance to the wife and since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards.
  4. Repudiation of marriage by wife: If the marriage of the woman, whether consummated or not, was solemnised before she attained the age of fifteen years and she has repudiated the marriage after attaining that age but before attaining the age of eighteen years.

No dissolution of marriage under judicial separation

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.

Effect of a decree of judicial separation

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)

About the Author

author Sunil Sharma is an advocate; editor and compiler of legal commentaries, having authored more than 40 books.

1)
Section 10 (1)
2)
Section 10 (2)
3)
AIR 1973 Ker 273
4)
AIR 1975 Bom 88


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Created on 2021/04/07 18:32 by LawPage • Last modified on 2021/04/09 22:25 (external edit)