Hindu law

Judicial separation

LL.B.1st,2nd sem

Synopsis:

 Introduction
 Meaning of judicial separation
 Grounds of judicial separation
 Hindu laws Amendment Act,1976
 Effect of judicial separation
 Difference between judicial separation and divorce
 Conclusion

Introduction:
In Indian Society, marriage is considered as a sacrament. It is an irrevocable relationship
between husband and wife established through rituals and customs. Before 1955, there was no
relief available to either party in case of a failed marriage. They had to continue with the
marriage and couldn’t break the marriage. After the passage of Hindu Marriage Act, 1955 things
changed in favor of both parties to the marriage. Now, in case of a failed marriage, the parties do
not need to suffer in the marriage and can easily break their matrimonial alliance through
Judicial Separation or by a decree of Divorce.

The Marriage Laws (Amendment) Act, 1976 makes the ground for judicial separation and
divorce common. It is upon the parties to choose between the two methods of dissolution.

The legal effect of judicial separation and divorce is however different. A divorce puts the final
nail in the coffin of marriage whereas judicial separation leaves the scope of settlement between
parties.

What is a judicial separation?:

Either party to the marriage, whether solemnized before or after commencement of the Hindu
Marriage Act, 1955 can under Section 10 of the Act file a petition for judicial separation. After a
decree is passed in favor of the parties, they are not bound to cohabit with each other. Some
matrimonial rights and obligation, however, continue to subsist. They cannot remarry during the
period of separation. They are at liberty to live separately from each other. Rights and
obligations remain suspended during the period of separation. The grounds for judicial
separation are same as for divorce. Under Section 13(1), judicial separation may be sought on
the following grounds:


 o Adultery: If other spouse had a voluntary sexual intercourse with any person
other than his or her spouse after solemnization of marriage.
o Cruelty: If after solemnization of marriage, one of the spouse treats the other
with cruelty.
o Desertion: If the other party has deserted the spouse for a continuous period of 2
years without any reasonable ground immediately preceding the presentation of
the petition.
o Conversion: If one of the spouses has ceased to be a Hindu.
o Insanity: If the other party is of unsound mind or has been suffering continuously
from mental disorder of such a kind and to such an extent that the petitioner
cannot live with the other party.
o Leprosy: If the other party has been suffering from a virulent and incurable form
of leprosy.
o Venereal disease: If the other party has been suffering from venereal disease in a
communicable form.
o Renounced the world: If the other spouse has renounced the world by entering
any religious order.
o Has not been heard alive for seven years.
In addition to these grounds some of the grounds are exclusively reserved for women:

 Husband has more than one wife living: If the husband had married before the commencement
of the Act and after the commencement of the Act has again remarried either of the wives can
present a suit for judicial separation provided the other wife is alive at the time of presentation
of the petition.
 Rape, Sodomy or Bestiality: If a man is guilty of offense like rape, sodomy or bestiality, the wife
can present a petition for judicial separation.
 Marriage before the age of fifteen years: If the marriage of women was solemnized before
attaining 15 years of age, on her attainment of 15 years she could repudiate it but before
attaining the age of 18 years.
Can maintenance be claimed by wife during the period of judicial separation?
In case of judicial separation, the court can also deal with the questions of maintenance of wife,
custody of children and property.

In the case of Sohan Lal vs. Kamlesh it was held that in case of judicial separation, a wife is
allowed to claim maintenance from husband in case she is not able to maintain herself.

What to do in case after judicial separation where the parties want to resume
cohabitation?
Since a decree for judicial separation is a judgment in rem, if the parties want to resume
cohabitation, it is necessary for them to get the order of judicial separation annulled by the court.
Normally, the court rescinds the degree on presentation of the petition by consent of both the
parties.
What is the purpose of a judicial separation?:
Judicial Separation is a step prior to a divorce. The purpose of judicial separation is to provide an
opportunity to the parties to reconcile their difference.

What is a divorce?:
In case of divorce, parties cease to be husband and wife. Divorce puts an end to the marriage and
all mutual rights, and obligations stand terminated. The parties are free to marry again.

Grounds for divorce?:

 The grounds for divorce is mentioned under Section 13(1). The grounds of divorce and judicial
separation are the same. Apart from these grounds, the wife may seek divorce on additional
grounds as discussed above.
 The parties are also free to present a petition in case there is no resumption of cohabitation
between the parties to the marriage for a period of one year or more after the passing of judicial
separation by the court. In such a case, the court will not require proof of any of the grounds of
divorce. Merely a presentation of the petition will be sufficient for the court to grant a decree of
divorce.
 In case, the court had ordered restitution of conjugal rights under Section 9 of the HMA, 1955
and the parties do not comply with the decree of the court and fail to cohabit. In such a case, on
presentation of the petition for divorce the court will not enquire into any grounds for divorce
and will pass a decree of divorce on the grounds of failure of restitution of conjugal rights.
 In a petition for divorce, if the petitioner cannot prove grounds for divorce, or the court is not
satisfied that the act is so grave to pass a decree of divorce it has the power to pass a decree of
judicial separation even if the petitioner did not ask for it. In the case of Vimlesh v. Prakash
Chandra Sharma, the court held that a single instance of cruelty is not so grave to pass a decree
of divorce. Thus, the court granted a decree of judicial separation to provide an opportunity for
the parties to reconcile.
Additional grounds for divorce:
The Marriage Law (Amendment) Act, 1976 provides an additional ground for divorce under
Section 13(b). Where both the parties feel that the marriage is torn and there is no scope of
reconciliation, both the parties may by mutual consent present a decree of divorce under Section
13(b) whereby the court will not enquire for any reason for divorce and will grant a decree in
favor of the parties if both of them want a divorce. Under the Act, a period of 6 months for
reconciliation is granted on presentation of a petition for divorce by mutual consent. However, in
the case of Nikhil Kumar V. Rupali Kumar, the Supreme Court has done away with the
mandatory reconciliation period of six months. Now, divorce on the ground of mutual consent
can be granted on presentation of the petition and parties do not need to wait for six months.

Difference between judicial separation and divorce:

JUDICIAL SEPARATION             DIVORCE

  Can file a petition at any time post  Can file only after completion of one year
marriage. of marriage.
 Only one stage of judgement. If grounds  Judgement is a two-step process. First
are satisfied, decree granted. reconciliation, then divorce.
 Temporary suspension of marriage.  Brings marriage to an end.
 Cannot remarry after the passage of  Can remarry once decree in favor of
decree. divorce is passed.
 It is a ground for divorce.  Living in an adulterous relationship
 A single instance of adultery sufficient for necessary.
Judicial Sep.
 The possibility of reconciliation.  No possibility of reconciliation.

How to file a petition for divorce or judicial separation?

A petition for divorce or judicial separation can be filed in a district court within the jurisdiction
of whose:

 The marriage was solemnized.

 The respondent, at the time of presentation of petition, resides.
 The parties to marriage last resided together.
 The petitioner is residing, in case the respondent is outside territory of India.
Under Section 21 of the Act, all proceedings under this Act shall be regulated by the Code of
Civil Procedure.

Under order VII, rule 1 of CPC every petition for divorce or judicial separation must contain:

 The place and date of marriage

 Affidavit of being a Hindu
 Name, status, and domicile of husband and wife.
 Name of children, their sex, and date of birth.
 Full particulars of any litigation filed before the presentation of the petition for divorce.
 Evidence of the grounds for divorce or judicial separation. For example- in case of cruelty,
specific act of cruelty, medical report, place of cruelty, etc.
After filing of the petition, the other party is summoned. Both the parties are required to furnish
evidence to strengthen their claim. After furnishing of evidence is over, the judge hears the
argument of each side and passes a decree. Appeals against the decision of the lower court can be
made in a higher court.

Conclusion: At last we can say that judicial separation means to separate spouse to each
other for some period legally. After a decree is passed in favor of the parties, they are not
bound to cohabit with each other. Some matrimonial rights and obligation, however, continue to
subsist. They cannot remarry during the period of separation. While in diverse case parties are
free to to marriage.
Question.1.what do you mean by judicial separation what is the procedure and legal effect
of judicial separation under the Hindu marriage Act, 1955.

Question.2. what is the grounds of judicial separation after amendment 1976, under the
Hindu marriage Act 1955 ?

Question.3.distinguish between judicial separation and divorce under Hindu marriage Act
1955.