Judicial Separation or Divorce

This article is written by Deepika, pursuing BA-LLB from IIMT & School of Law, GGSIPU, Delhi. In this article concept of Judicial separation and difference between divorce and judicial separation has been discussed.

Introduction

Marriage, whether considered as a sacrament or a contract gives rise to a status. It confers the status of husband and wife on parties to the marriage. But merely getting the status of being husband or wife doesn’t make the marital life happy. A happy marital life is a result of unconditional love, faith, belief, devotion, sacrifices and determination between couples who desire to stay together in every phase of life. When the spouses are unable to make their marriage blissful by failing in terms of devotion, sacrifices, faith, understanding etc.,  both the spouses start experiencing lack of interest, mistrust, misunderstandings, selfishness, ego problems, differences, etc. amongst one another and unfortunately, this results in the couple filing for Divorce. Here the law believes in giving an opportunity to the couples for reconciliation by means of Judicial separation rather than closing the doors for always by means of divorce.

Judicial separation

Judicial separation is a legal process in which a married couple facing troubles in their marital life are separated by court order,  despite being legally married. It is often called divorce from bed and board.  But during this period they have the same status as husband and wife.  The court gives an opportunity to the parties for introspection about giving a chance to their marriage. The parties of the marriage living separately by the order of court get sufficient independence and time to rethink about giving a chance to their marriage by resolving their disputes.

What is the purpose of a judicial separation?

Judicial Separation is a step just below to divorce. The purpose of judicial separation is to provide an opportunity for the parties to reconcile their difference by giving adequate space and independence for introspection.

Nature of Judicial separation

judicial separation is one of the matrimonial reliefs provided under the personal law statues. Unlike divorce it doesn’t put an end to the marriage; the legal relationship of husband and wife subsists and the parties can’t remarry. it is not however obligatory on the parties to cohabit with each other during the period of judicial separation.  Judicial separation doesn’t require spouses to stay at different places. They can reside under a common roof. Their conjugal duties towards each other come to an end. All basic marital obligations remain suspended. Nonetheless, marriage subsists parties remain husband and wife.

Legal provision

Section 10(1) of Hindu Marriage Act 1955 provides that either party to the marriage may present a praying for a decree of Judicial separation on any of the grounds specified in section 13(1). This section also provides additional grounds to wife beside the above grounds as given in section 13(2) of the Act.

Grounds for Judicial Separation

It is given under Section 10 of the Act; the spouse can file a petition for judicial separation on the basis of the following grounds:

Adultery (section 13(1)) If any of the spouses voluntarily had sexual intercourse with any other person except his/her spouse, the aggrieved party can claim the relief but that intercourse should be placed after the marriage.

Cruelty [Section 13(1)(i-a)]- When the spouse treats his/her partner with cruelty or inflicts any mental or physical pain after the marriage. The aggrieved spouse can file a petition on the grounds of cruelty.

In SMT. KANTA DEVI V. BALBIR SINGH  Wife used to ill-treat her husband and in-laws by using foul and abusive language to them. All this hampered the mental peace of the husband. The court laid down that this is a case of cruelty.

 Desertion [Section 13(1)(i-b)]-  If the spouse has left the other spouse for any reason without informing him/her for a period not less than 2 years before filing the petition by another spouse, desertion gives a right to claim relief of judicial separation to the other spouse.

Conversion/Apostasy [Section 13(1)(ii)]- If any spouse gets converted into any other religion other than Hindu, then the other spouse can file for judicial separation.

Unsound mind [Section 13(1)(iii)]- If any spouse in a marriage has been suffering continuously and intermittently from any mental disorder of such kind and to such extent that the petitioner cannot reasonably be expected to live with the respondent then the other spouse can claim relief of judicial separation.

Case- Anima Roy Vs. Prabadh Mohan Ray (AIR 1969) the respondent was found suffering from an abnormal disease after 2 months of marriage. The doctor who checked the respondent could not find the particular time of inception of the illness. Therefore, it was held that disease was not proved at the time of marriage. So, the decree of judicial separation on the ground of unsound mind of spouse can’t be obtained.

Leprosy [Section 13(1)(iv)]- If any spouse suffering from any disease like leprosy,  which can not be recovered, then the other party can file a petition for judicial separation.

Venereal Disease [Section 13(1)(v)]- venereal disease to be a ground for divorce or Judicial separation must be in a communicable form. If the spouse has any type of disease which is incurable and communicable and the other spouse does not know about the fact at the time of marriage, then it could be a valid ground for the spouse to file a petition for judicial separation.

Illustration- ‘X’ is suffering from any disease which spread by communication. The disease which is irrevocable. In this case, ‘Y’ the wife of ‘X’ can file a petition for the judicial separation.

Renounced the World [Section 13(1)(vi)]- In Hindu law, by renouncing the world means “Sannyasa”. Renunciation from the world conveys that the person has given up the world and entered in some religious order. He is considered a civil dead. If a spouse renounces the world to live a holy life, his/her partner can file for judicial separation.

Civil death/Presumed death [Section 13(1)(vii)]- If a person 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 it, had the party been alive then the other spouse can file a petition of divorce

Illustration- ‘A’ and ‘B’, after their marriage successfully enjoyed their married life for  6 years. and suddenly the husband disappeared for about 10 years. ‘B’ as his wife she did her best to find her husband in these 10 years but she couldn’t find him. After all her futile efforts she can file for the decree of judicial separation.

Additional grounds available to the wife, for Judicial separation

Bigamy [Section 13(2)(i)]- In the case of any marriage solemnised before the commencement of Hindu marriage Act, 1955, of the husband had married again before such commencement or that any other wife of the husband married before such commencement was alive at the solemnisation of marriage then petition for Judicial separation can be made by one wife if the other wife is also alive at the time of presentation of the petition.

Rape, sodomy or Bestiality [Section 13(2)(ii)]- The wife has a right to file a petition for judicial separation if her husband is guilty of charges like rape, bestiality or sodomy after the marriage.

Repudiation of marriage/A option of puberty [Section 13(2)(iv)]- If a girl’s marriage happened before attending 15 years of age, then, she has a right to claim judicial separation after she turns 15 but before attaining the age of 18 years.

Non- resumption of cohabitation after a 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 may be, has been passed against the husband awarding maintenance to the wife and that since the passing of such order or decree, cohabitation between the parties has not been resumed for one year or upwards.

Requirements for resuming cohabitation

If the parties agree to resume cohabitation any time after passing of the decree of Judicial separation, they can get the degree rescinded by applying to the court. Section 10(2) of the Act provides on the application by petition of either party if the court is satisfied of the truth of the statements made in such petition, the court can rescind the decree if it considers just and reasonable to do so.

Case laws on judicial separation

LALITHA DEVI V. RADHA MOHAN

The husband promised another woman that he would marry her and would keep her in the same house where his wife was residing, judicial separation was granted to the wife as it was the case of mental cruelty.

ASHIM HANJAN PODDAR V. ANUSREE PODDAR

The wife in the said case had made false allegations of an illicit connection between her husband and his elder married sister. The Calcutta High court held that the unfounded and groundless accusation by the wife that the husband had an illegitimate connection with his own married elder sister is an example of cruelty. The court passed the decree of judicial separation.

Difference between Judicial Separation and Divorce

Judicial SeparationDivorce
Marital ties are suspendedMarital ties come to an end
Mutual rights & Obligation are suspendedMutual rights and Obligation come to an end
Parties are not free to re-marryParties are free to marry past the appeal period
Parties share married statusMarried status comes to an end
Parties can file for Judicial Separation anytime past the marriage Parties can file for divorce only after completion of 1 year of marriage

Conclusion

So Judicial separation is one of the matrimonial reliefs provided under Hindu Marriage Act 1955  wherein the parties to the marriage are given an opportunity for reconciliation by giving sufficient space, time and independence to the parties for introspection. This time period allows the spouses to rethink about every marital troubles with a peaceful mind. Judicial separation unlike divorce keeps a door of reunion open for the spouses. This significant provision of Hindi Marriage Act so far has saved many marriages from reaching the stage of divorce.

References

  • Dr Paras Diwan, 18th edition
  • Dr Shivani  Goswami, 1st edition

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