Tag: Hindu Marriage Act

Dissolving Marriage on Irretrievable Breakdown

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INTRODUCTION

In India, marriage is considered a sacred union between two bodies of opposite sexes. Sharing a common room, their life, and the commitment to live with each other makes it unbreakable bondage not only for one life but for seven lives. It is believed that when two souls will unite in every sense that is physical, mental, and psychological, a new soul will come into existence which is termed “PROGENY” which is very important and that is how life will move ahead. It is believed that this relationship is built by God in Heaven and no one should question this, even the “Husband and Wife”. But what if one of the spouses isn’t happy with this sacramental knot and wants to break it? Is he or she allowed to do so?

The answer changes with time. Before this century, even the thought of separation was deemed to be a very sinful thing but today it is not. The main reason behind this is that people are now more advanced. The development in the field of communication, education, understanding, and societal norms has developed the social strata of society. People have now started giving importance to their mental health and that is good in every sense.

BACKGROUND

Historically, there is no proper law that considers the ground of “Irretrievable Breakdown of Marriage” for the ground of Divorce. Under the Hindu Marriage Act, 1955, Section 13 deals with the various ground on which divorce can be obtained. They are:

Fault Ground [Section 13(1)]

  1. Desertion, Adultery, Cruelty, Insanity, Leprosy, and Venereal Disease1.
  2. Apart from this, Conversion and Renunciation of the world can also be used as a valid ground for Divorce in Hindu Religion. Under this case, 2 conditions should be met and they are:
  3. The spouse has ceased to be a Hindu, and
  4. He or she has converted to another religion2.

In the case of Teesta Chattoraj vs. Union of India3, the court held that conversion of religion by one spouse can be used as a valid ground for divorce. Similarly, in the case of Sital Das vs. Sant Ram4, the court held that if someone undergoes the traditions, rites, and ceremonies of religion, that person will be considered to have entered the religious order but if that individual cohabits then it cannot be considered a valid ground because he or she has no longer renounced the world.

Divorce by Mutual Consent [13B (1)]5

According to this section, if the spouses are not happy with each other and want to separate and lead a new life away from each other, they can file for divorce based on the ground of “Divorce by Mutual Consent”.

Customary Divorce [Section 29 (2)]6

Proceeding further, Section 27 and Section 28 of the Special Marriage Act, 19547 also deals with the grounds of divorce in a solemnized marriage. But nowhere it is explicitly mentioned that the ground of “Irretrievable breakdown of Marriage” is a valid ground. In this respect only, the Law Commission of India in its 71st Report recommended that the ground of “Irretrievable Breakdown of Marriage” should be explicitly mentioned and stated in the Hindu Law. But this lapsed as there was a high level of resistance and lack of support from some major women-led NGOs. The reason which was put forthwith was that the ground of “mutual consent” already covers this and a new addition will only complicate things further.

In the case of Munish Kakkar vs. Nidhi Kakkar8, the court itself expressed that a dead letter marriage would only create a strenuous relationship between the spouses. It would be better if they split and move ahead in their lives “as the recognition of the futility of a completely failed marriage being continued only on paper….”

That is why, in the case of Naveen Kohli vs. Neelu Kohli9, the Supreme Court itself stated that adding the ground of “Irretrievable breakdown” in the Hindu Marriage Act, 1955 is reasonable. The individuals are right if they go with this option.

LEGAL FACET

Though there is no specific provision present in the current judicial system, there are instances where the Supreme Court has collapsed the marriage on the ground of irretrievable breakdown under the power conferred by Article 142 of the Constitution of India.

In the case of Pramod Kumar Mittal and Another vs. Kanchan Devi10, the Court exercised its power under Article 142 of the Constitution of India and dissolved the marriage between the appellant and the respondent. Here, there were 4 daughters also who were born out of wedlock but the Court maintained that the husband is maintaining them till now and he will continue to do so. A reasonable opportunity will be given to the wife to meet her daughters if she has any intentions or desire for doing so.

Similarly, in the cases of Sanghmita Ghosh vs. Kajal Ghosh11, Samar Ghosh vs. Jaya Ghosh12, K Srinivas Rao vs. D.A. Deepa13, Sukhendu Das vs. Rita Mukherjee14, the court exercised its power under Article 142 and dissolved the marriage on the ground of “Irretrievable Breakdown”.

And, the recent case in this regard is R. Srinivas Kumar vs. R. Shametha15. Here, the petitioner claimed that he suffered mental cruelty because of the respondent and that is why he filed for divorce under the Section 13(1)(i-a) and (ib) of the Hindu Marriage Act, 1955 which was dismissed in the Family Court as the husband failed to prove the ground of cruelty. When he then appealed to the Higher Court, it was again dismissed. After this, he moved to the Supreme Court and presented his case where it was mentioned that both the spouses are not living with each other for the past 22 years and this should be considered as a ground for an “Irretrievable Breakdown” of marriage. Then, the SC exercised his power under Article 142 and granted Divorce.

Sometimes, there are situations like when the spouses cannot bear each other in a matrimonial relationship for even the time period of 1 year or 6 months. In that case, the SC did exercise its power again and dissolved the marriage. This was done in the case of Manish Goel v. Rohini Goel16, where the court held that “the court is competent to waive of the statutory period of six months in the exercise of its jurisdiction under Article 142 of the Constitution.” This case is also important from the view that, in this case, the Court passed an order contrary to another law. Generally, no court has the power to issue a direction that is in contravention of the statutory provisions because courts are the institutions that are meant to enforce the rule of law and not pass an order which is in contravention of that. But in the case of, Laxmidas Morarji (dead) by L.Rs. v. Behrose Darab Madan17, the Court has held that the power under Article 142 of the Constitution of India is constitutional and therefore, cannot be restricted by any statutory enactments. This doesn’t mean that now the Court can act or pass an order which is inconsistent with the statutory enactments about the case. The power has to be exercised only in cases where existing provisions of the law are not able to bring complete justice between the parties.

Likewise, there are a series of Judgments where the Supreme Court pronounced judgments in the exercise of its power under Article 142 of the Constitution of India and granted divorce to the spouses who no longer wanted to live with each other in a matrimonial relationship because it continuity will only prove to be fruitless and further cause emotional roller coastal ride on the lives of the individuals involved. The sooner it ends, the better it would be for both parties as there is no reason of continuing or be tied in a sacramental knot that has no sense in reality.

CONCLUSION

No doubt marriage is an institution that is very pious and sacramental in its own sense. When it happens, there is a birth of a new soul in this world which only brings happiness and happiness. Not only that, but it also grants individuals some legal rights which are not in place when the individual is single. It is only extended to married people that are:

  1. Right to inherit spouse’s property upon death
  2. Right to receive spouse’s social security, pension, worker’s compensation, or disability benefits
  3. Right to receive “marriage” or “family rate” on health, car, and/or liability insurance.

But still, that does not mean keeping two people in a relationship where both parties or even one party is unhappy. If the marriage proves to be meaningless and pointless, it should be dissolved. Apart from this, our legal judicial system cannot turn a blind eye when one or both parties find it laborious to continue in a relationship. It is a very miserable situation where only quarreling, bickering, bitterness, and many other things reside. And in that case, it cannot be said as an immoral activity when one party tries to break it. Because all the responsibilities and duties come after humanity. It is to be noted that “Irretrievable Breakdown of Marriage” is not a recognized ground for Divorce under the actual Hindu Marriage Act, 1955 or any law. It has been only accepted as a ground-based on precedents.

REFERENCES

  1. Hindu Marriage Act, 1955, Section 13(1).
  2. ibid
  3. Teesta Chattoraj vs, Union of India, 2012 SCC OnLine Del 1949 
  4. Sital Das vs. Sant Ram, 2011 SCC OnLine Mad 681
  5. Hindu Marriage Act, 1955, Section 13 (B) (1)
  6. Hindu Marriage Act, 1955, Section 29 (2)
  7. Special Marriage Act, 1954, Section 27 and 28
  8. Munish Kakkar vs. Nidhi Kakkar, (2020) 14 SCC 657
  9. Naveen Kohli vs. Neelu Kohli, 2006 (4) SCC 558
  10. Kanchan Devi vs. Promod Kumar Mittal, (1996) 8 SCC 90
  11. Sanghamita Ghosh vs. Kajal Ghosh (2007) 2 SCC 220
  12. Samar Ghosh vs. Jaya Ghosh (2007) 4 SCC 511
  13. K.Srinivas Rao vs. D. A. Deepa, (2013) 5 SCC 226
  14. Sukhendu Das vs. Rita Mukherjee, (2017) 9 SCC 632
  15. R. Srinivas Kumar vs. R. Shametha, AIR 2019 SC 4919
  16. Manish Goel vs. Rohini Goel, (2010) 4 SCC 393
  17. Laxmidas Morarji (DEAD) by LRS. vs. Behrose Darab Madan, (2009) 10 SCC 425

This article is written by Deeksha Singh, from Lloyd Law College, Greater Noida.

Evolution of Women’s Rights under Hindu Law

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INTRODUCTION

Gender inequality in India evinces itself in a diversities of ways, but the most prevalent is in the area of legitimate property rights. Numerous laws have been eventuated to abolish women’s economic beliefs and furnished their high status and equality. In addition, the Constitution of India establishes equality, invigorating women’s property rights and ingress to economic resources. Despite all of this, the affairs of women remain consistent due to a lack of education and knowledge, and non-compliance with the rights of women’s law. Due to family norms, societal humiliation, and related prospects, even women themselves are not so much interested in executing their rights. The empowerment of Indian Women by Dr. Babasaheb Ambedkar invariably convinced movements headed by women.

He persisted that every married woman must participate in her husband’s activities as a friend. But she ought to show the audacity to contradict the life of slaves. She should hold on to the rules of equality. If every woman sticks to it, she will acquire genuine respect and recognition. He said, “We shall have good days ahead and our progression will be greatly hastened if male learning is persuaded side by side with female learning ”. He initiated a strong gesture against the Hindu social order and introduced a journal Mook Nayak in 1920 and Bahiskrit Bharat in 1927. He laid due emphasis on gender equality and the demand for education. In January 1928, a women’s organization was established in Bombay with Ramabai, Ambedkar’s wife (president). The emboldened Dr. Ambedkar empowered women to express themselves, it was glimpsed when Radhabai Vadale addressed a press conference in 1931.

MARRIAGE AND DIVORCE LAW

According to Vedas, a Hindu marriage is an imperishable alliance till eternity. It is known as a fusion of “flesh with flesh, skin with skin and bones with bones, the husband and wife grace as if they were a single person. The Hindu Marriage Act, of 1955 has eliminated these imbalances to a large stretch. It has created monogamy the principle for both men and women. A woman can break down her marriage and easily enter into another marriage as per to law. The Hindu Marriage Act, of 1955 has specified the causes for divorce. The Hindu Marriage Act, 1955 Section 5 lays down the circumstances for marriage. It opines that both parties to the marriage should have the position to obtain consent to the marriage.

The Hindu marriage is a sacrament; sacred and eternal. It is perpetual and pursues life cause she can’t have a second husband even after his demise. Husband and wife become individual as she cannot have any originality of her own. But the husband could set his foot into the sacramental crimp of marriage many numbers of times because polygamy was not banned under Hindu law before the enforcement of the Hindu Marriage Act, 1955. However, the views regarding the nature of Hindu marriage are evolving.

LAW OF ADOPTION

The law of adoption in the ancient Hindu tradition is different from one creed to another. The Hindu Adoption and Maintenance Act, of 1956 established uniformity in the principle of adoption among Hindus. A Hindu woman was empowered to adopt a child only under exquisite circumstances under the Shastric Hindu Law. The women’s rights to adopt a child were restricted. Through the Hindu Adoption and Maintenance Act, 1956 the authorization of a woman to adopt a child is granted, but bigotry against women continues. A married man can adopt but a married woman can’t during the maintenance of the marriage under the Hindu Adoption and Maintenance Act, 1956. Now, this inequality has been removed by the Personal Laws Amendment Act, 2010.

PROPERTY RIGHTS

To eliminate all these conflicts and to secure women as equal to men, the then government sanctioned the Hindu Succession Act in 1956. The Act passed in 1956 was the fundamental law to provide an absolute and uniform structure of inheritance for Hindus and to label gender inequalities in the patch of inheritance. Therefore, it was a procedure of codification as well as an amendment at the same time. The Hindu Succession Act was the initial act of property privileges and rights among Hindus after independence. The Hindu Succession Act, 1956 was sanctioned to codify creeds statute relating to deliberate succession among Hindus.

This appeals to both Mitakshara and Dayabhaga creeds. Preserving the Mitakshara inheritance without women being involved in it indicated that women could not bequest ancestral property rights as men do. If a joint family diverged, each male beneficiary takes his share, and the women acquire nothing. The Hindu Succession (Amendment) Act, 2005, enveloped inequalities on different appearances: parental dwelling house; agricultural land; Mitakshara joint family property; and certain widows. From history to the present, there is an extreme change in the lifestyle of women, now women with their domiciliary work also play a part in the earning of their family and the economy of the nation. She absences nowhere at the back of the man. Women must never be contemplated the delicate part of society as their household tasks are more difficult than the office work of the man.

WHY DO RULES FOR WOMEN’S SUCCESSION NEED TO CHANGE?

The law approves heirs of the father or husband to inherit properties of women who die unheard, but properties of men who die unheard don’t delegate to a woman’s heirs. A three-judge Supreme Court bench headed by Justice DY Chandrachud is trialing a petition testing the provisos of the Hindu Succession Act, 1956, specifically sections 15 and 16 relating to female succession. The appeal challenges the constitutionality of the provisos for being “overly discriminatory and infringing the procedure of the Constitution”. Although the lawsuit was filed four years ago in 2018, an amendment bill recommending changes retrieving the same had been already found in Parliament in 2015, but there was no conversation on it, leading to the sequential lapse of the bill.

The Hindu Succession Act gives the principles for the property succession of a Hindu woman who dies unheard. It comes up with a hierarchy heeding to which the property is to delegate.

1. Prakash v. Phulvati1 – In this case, a two-judge bench headed by Justice A. K. Goel held that the interests of the 2005 amendment could be permitted only to living daughters of living inheritors as of September 9, 2005 (The date when the amendment came into power). The Apex Court had held that Section 6 was prospective in nature and would apply only if the coparcener and daughter were both alive as on 9 September 2005.

2. Danamma v. Amar2 – In this case, the honorable Supreme Court of India stated that if the father is a coparcener who demised before 9 September 2005 and a prior suit has been unsettled for partition by a male coparcener, then the female coparceners are sanctioned to a share. The court remarked that the provisions of section 6 (Amendment Act) are functioning in a retrospective manner and they transform absolute rights upon the daughter to be inheritor since birth. This judgment was in contrast to the judgment given in the Phulavati case.

3. Vineeta Sharma v Rakesh Sharma3, the court held that a daughter coheir would have equal coparcenary rights in Hindu undivided family properties or equal privileges to the family property by birth regardless of whether the father coparcener demised before or after 9 September 2005 (The day Parliament acknowledged this right by amending the Hindu Succession Act of 1956). The Supreme Court of India held that Section 6 shall be seen retroactively. Describing the theory of retroactive application of the amendment act, 2005, the court held that the said Act permits women to have the benefits of succession based on their birth.

CONCLUSION

However, despite all the rebellious conditions of the Hindu Succession Act of 1956, Hindu women in the Indian community pursue to be underprivileged property rights in general. It was only a slice of legislation. Even though the Act established insurgent changes, it has been predominantly ignored by family members in fact since the conditions are incompatible with habitual Hindu social essence. There because of a limpid contrast between the law as it is and the law as it is bid. It is frequently tarnished by incidences of unabashed prejudice. All of these are laudable measures in theory, but the challenge leans not in acknowledging women’s property rights but in implementing them.

CITATIONS

1 (2016) 2 SCC 36.

2 (2018) 3 SCC 343.

3 (2020) 9 SCC 1.

The article is written by Ashmita Dhumas, who has completed her BA LLB from Agra College and is doing a diploma in Corporate Law from Enhelion.

IRRETRIEVABLE BREAKDOWN AS A GROUND FOR DISSOLUTION

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This article is authored by Pankhuri Pankaj, a 3rd-year student pursuing BA-LLB (Hons.) from Vivekananda Institute of Professional Studies, affiliated to GGSIPU. She is currently interning with Lexpeeps. This article summarises certain key provisions of “irretrievable breakdown as a ground for dissolution” under the Hindu Marriage Act and is qualified in its entirety by reference to the Hindu Marriage Act, 1955.

INTRODUCTION

In India marriage is considered a sacrament and an integral part of the community which needs to be preserved at all costs. Marriage is considered the foundation of the family and an institution in the maintenance of which the public at large is entrusted. With the importance attached to the bond of marriage earlier in the Hindu community divorce was not even considered as an option, especially for the women, but with the enactment of the Hindu Marriage Act, 1955, a marriage can be dissolved by both the parties in marriage on any of the ground provided section 13 of the Act. 

LAWS IN RELATION TO DIVORCE IN INDIA

From considering marriage to be a holy bond made by the almighty himself to accepting the need to relieve a woman from the obligation to be chained with a man for the rest of her life despite the fact that man is completely devoid of the virtues that a husband should possess, the Hindu marriage laws have paved a slow but steady path to accept the provision of divorce. 

In India the divorce laws are categorised on the basis of two theories:

  • First is the Fault Theory which basically relies on the matrimonial offence of either of the parties in the marriage to refer to a dissolution of the marriage. There are in total 9 such matrimonial offences laid down under Section 13 of the Hindu Marriage Act, 1955 to act as a ground for divorce.
  • Second is the Mutual Consent Theory which lays down that in case both the parties in the marriage wish to detach from each other mutually without either of the parties being at fault then they should be granted the right. This theory is based on the concept that if two individuals are entitled to get married on their wish then they should be entitled to walk out of the union if they wish to. This theory has been enumerated under Section 13(i)(A) and 13(i)(B) of the Act.

WHAT IS IRRETRIEVABLE BREAKDOWN OF MARRIAGE?

Irretrievable breakdown of a marriage is a stage in a matrimonial relationship where the couple can no longer live together as man and wife. For the first time, this term was brought up in New Zealand where it was recognized that it needn’t be necessary for there to be some fault or other for a spouse to want to opt-out of a marriage and hence the law has to recognize and cater to that requirement.

The case of Masarati v. Masarati ([1969] 1 WLR 393, CA) the concept of irretrievable breakdown was considered for the first time in England and later in 1943 in the case of Blunt v. Blunt ([1943] AC 517, HL), the house of lords laid down more explicitly that no good can come out of legally upholding a marriage that has broken down to the point that there’s no scope for repair but separation. Under the English Law, it is considered that though marriage portraits a union of two individuals and is viewed as an example about companionship and love, rather than be put in a situation where a fault has to be brought out to prove to the court as to why the marriage wouldn’t work the option to opt-out of this bond and the choice to dissolve such a union should also be available with the same amount of dignity and ease. 

Even the Muslim law has taken the liberty to consider the breakdown theory and has graciously given both the parties to the marriage the right to give talaq, but till date in India, there is still no codified law to recognize irretrievable breakdowns as a ground for the dissolution of a marriage. In a country where the institution of marriage is considered a sacrament and is personified as a relation of eternal love and promise, the idea that the individuals involved in this holy arrangement would grow out of the relationship and would wish to dissolve the union is hard to digest fact. But with the change in the scenario in the country and considering the infact dead marriages involved in long drawn battles the Supreme Court expressed special concern regarding this concept.

IRRETRIEVABLE BREAKDOWN OF A MARRIAGE IN INDIA 

In the case of A. Jayachandra v. Aneel Kaur, the Supreme Court after pondering on the facts of the case considered the diffusion and disintegration of marital unity and deduced the irretrievable breakdown of marriage and granted divorce to the husband.

In the case of Naveen Kohli v. Neelu Kohli (AIR 2006 SC 1675), where after a few years of marriage the relationship between the individuals turned sour and various allegations of adultery and cruelty were raised. After carefully examining the facts of the case the trial court held that no cordiality was left between the parties after the allegations raised were of such nature and thus no possibility to reconnect the chain of marital life between them. From the facts itself, it was evident to the court that the marriage was wrecked beyond any scope for redemption and hence, the court held that there was no alternative left but to dissolve this marriage. Even though the High Court upheld the idea that the Trial Court made an error in granting divorce to the parties but the Supreme Court upheld the decision of the Trial Court and upheld the idea that it is best to sever the legal tie when the marriage becomes “fictional”.

Later in the case of Vishnu Dutt Sharma v Manju Sharma (Civil Appeal NO. 1330 OF 2009), the case of Naveen Kohli v. Neelu Kohli was brought up to appeal for a divorce on the grounds of irretrievable breakdown, the court held that the granting of the divorce on grounds of irretrievable breakdown would mean adding a clause to Section 13 of the Act through a judicial verdict. A mere direction of the court in earlier cases, without considering the legal position, was not a precedent to be followed by the courts. The court further added that only the legislature is empowered with the right to add a new clause making irretrievable breakdown of marriage grounds for a divorce. In the end, the plea was rejected by the Supreme Court and it was clarified that even though irretrievable breakdown was recognised under Naveen Kohli v. Neelu Kohli, the divorce was granted on the grounds of cruelty.

It is important to note that before considering the option of granting a divorce on irretrievable breakdown is to make sure the marriage was legally valid. 

Even though the Indian judiciary has recognised the irretrievable breakdown of marriage but to accept this concept as a ground for divorce it is necessary for the society to take a step aside from the belief of marriage as sanctity and face the reality of marriage indeed being a special bond but one that can grow out of those exceptional qualities of unity and love too. It is the Indian judiciary which hears cases on a daily basis but laws are not made everyday, for one to see irretrievable breakdown see the light on the other end of the tunnel as a valid ground for divorce, it is only the legislature which can fulfil that thought

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Judicial Separation and Divorce under the Hindu Marriage Act, 1955

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This article has been written by Yash Dodani, a first-year student at NALSAR University of Law. He has tried to explain the concepts of Judicial separation and Divorce and set a difference between these two.

INTRODUCTION

The Hindu Marriage in Indian society is considered as a sacrament. It means that the Hindu marriage by its creation can’t be revoked by any chance. It is considered in the Hindu Rituals that the Hindu Marriage is made by the god and can’t be broken by humans. Before the enactment of the Hindu Marriage Act, 1955 [here referred to as “Act”] there was no method available for either of the parties to get the marriage dissolved if there are any issues with the marriage. As soon as the Act passed, the parties have got the grounds under which they can file a petition of either divorce or Judicial separation. The 1076 Amendment in the Act makes the grounds for judicial separation and divorce common. However, these pleas are not the same. There is a substantial difference between these two which I will discuss in the coming parts.

Read: Hindu Marriage: Is it a Sacrament or a Civil Contract

Meaning of Judicial Separation

When the parties to the marriage want to live separate from each other legally, despite being legally married. They file a plea under section – 10 of the Hindu Marriage Act by which they can formalize a de facto separation while remaining legally married. Upon approval of the plea filed, the couple is said to be ‘judicially separated’. This legal process is called Judicial Separation. Upon which they are no longer required to fulfil conjugal rights. There are however some obligations that need to be fulfilled. Either party is not allowed to remarry during the time of such separation. If they do so, they can be booked under section 494 of the IPC for adultery. A time of one year is given to the parties to resolve their issues if they can. In other words, the time is given in order to get a settlement done. 

There are various grounds available to parties under section 13[1] of the Act to file a plea of judicial separation which are same as divorce as stated above.

  • Adultery:  if the spouse has voluntary sexual intercourse with any other person other then his/her spouse, he/she can apply for judicial separation.
  • Cruelty: when any spouse after the marriage is treating another spouse with harsh nature. The courts are left upon to decide the cruelty.
  • Desertion: if the party has left the household of husband, without having reasonable ground for a continuous period of 2 years just before the presentation of the petition.
  • Conversion: if either of the spouses has converted and changed his/her religion, then this ground may apply.
  • Insanity: when after marriage, either of the party becomes/is of unsound mind, the petition of judicial separation can be filed.
  • Renounced the World: if either of the party has renounced the world by voluntarily entering into a religious order.
  • Has not been heard alive for seven years: if the spouse has not heard of the living of another, nither his/her close relatives have heard him/her for a period of seven years.

There are some other grounds which the Hindu Marriage Act has specified for only women. These are some grounds specified below:

  • Husband has more then one wife living: if the husband has more then one wife at the time of marriage, the wife can file a petition of judicial separation and the husband can be booked under section 494, 495 of IPC.
  • If the husband has in any time was convicted of rape, before or after the marriage.
  • If the woman has married before the age of 15 years and wants to file a petition of judicial separation, she can do it before turning to the age of 18.

The courts in the petition of judicial separation can also deal with the question of maintenance. Provided that during the time of the separation, the wife is in such a condition that she can’t maintain herself and but for the maintenance by the husband, she will be in harsh condition.

This decision was given by the Punjab and Haryana High Court in the case of Sohan Lal v Kamlesh[1] where the Court held that the maintenance can be given under the time of judicial separation where the wife is not able to maintain herself. 

Now, what if the parties have settled together and want to cohabit again? Since the judicial separation does not make the marriage dissolved, the parties can at any time in that separation or even after that, may file  a petition in the court asking to rescind the decree of judicial separation. However, the petition can only be filed once both the parties have consented to it and they really want to cohabit again.

The whole purpose of judicial separation is to give some time to parties to think over the decision of divorce if they want to take in the future. However, we have seen a conflict between the judicial separation and restitution of conjugal rights under section 9 of the Hindu Marriage Act. The courts have also sometimes converted the plea of judicial separation to restitution of conjugal rights. Irrespective of that the whole purpose of judicial separation is to give some time to the parties to reconcile their differences. It is a step before the petition of divorce.

Divorce

Divorce is a stage where the parties either decide by mutual consent or by the wrong of the other spouse, the marriage is dissolved. When the marriage is dissolved, the parties are permanently set away from the rights and obligations in the marriage. The parties are no longer be considered as husband and wife. However, they are allowed to marry again if they wish so.

There are three theories of divorce which are prevalent in the world. These are:

  1. Fault Based theory: this divorce theory means when the party is seeking divorce due to wrong of other spouse say adultery, conversion, rape etc. In simple terms when one of the spouses does anything which is prohibited by law in terms of marriage, the affected party can file a petition for divorce. 
  2. No-fault Theory: in this divorce, the petition is filed by the mutual consent of the parties. It is not necessary that there should be any wrong by either of the party.
  3. Breakdown of Marriage Theory: this theory coverts that part where the marriage is so broken down that it can’t be resolved again and compulsory divorce will be given. This theory is not used in India often but the Supreme Court has used the power under Article 142 of the Constitution to allow such divorce.

Grounds for Divorce

The grounds for divorce are the same as that of judicial separation. The parties are free to file a petition for divorce if there is no resolution of differences between the husband and wife in the times of judicial separation. If the court has earlier ordered the decree of Restitution of Conjugal rights under section 9 of the Act, and if the parties do not comply with it wholely or are not able to cohabit, the court will upon the presentation of a petition of the divorce by either of the parties, will not look into any ground and allow divorce. If the court finds no merit in the petition of divorce or thinks that the act is not so grave that the parties are not likely to divorce, it can change the petition into Judicial separation from divorce even if the petition has not asked for it. In the case of Vimlesh v Prakash Chandra Sharma[2] the court said, one instance of cruelty is not enough to file a petition of divorce and converted the petition to judicial separation so as to give some time to reconcile.  

Difference between Divorce and Judicial separation

Divorce Judicial separation
It can be filed after one year of the marriage. It can be filed at any time after the marriage.
Generally, a two-step process is used, first is the cool off period and then divorce is granted if nothing comes out good for the parties. Only the grounds needs to be satisfied.
Permanent dissolution of marriage. Temporary suspension of rights and obligations.
The persons can remarry after the procurement of decree of divorce. The parties can’t remarry after the procurement of decree of judicial separation.
In divorce, the courts presume that there is no possibility of reconciliation. There is a possibility of reconciliation.

Conclusion

I leave on you to determine whether the Hindu Marriage in current times a sacrament or a civil contract. There is a difference between divorce and Judicial separation which I discussed above.

[1] AIR 1984 P H 332

[2] AIR 1992 All 260

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