Presented by:
Aisha Singh
BA LLB B 3rd Sem
10051103821
JUDICIAL SEPARATION
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.
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.
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.
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.
• Related Section: 13(1A)(i)
Filing petition for Judicial Separation
• Any spouse who is hurt by another spouse, can file a petition for Judicial
Separation in a District Court under Section 10 of the Hindu Marriage Act,
1955 and the following should be satisfied:
The marriage between the husband and wife should be celebrated properly
under Hindu marriage Act.
The respondent should be settled in the jurisdiction of the court where the
petitioner filed the petition.
The husband and wife lived together for a particular period of time before
the filing of petition.
Grounds for Judicial Separation
Adultery [Section 13(1)(i)]- It means where
any of the spouses voluntarily had sexual
intercourse with any other person except his/her
spouse. Here, 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
sufferer can file a petition on the grounds of
cruelty.
Grounds for Judicial Separation
Desertion [Section 13(1)(i-b)]- In this section, it
is defined that if the spouse 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 for the hurt party.
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.
Grounds for Judicial Separation
Unsound mind [Section 13(1)(iii)]- If any spouse in a
marriage is suffering from any mental disease which is
difficult to live for the other spouse with the sufferer. The
other spouse can claim relief from judicial separation.
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
because he/she can not waste their own time due to the
sufferer.
Venereal Disease [Section 13(1)(v)]- If any party to a
marriage or a spouse has any type of disease which is
incurable and communicable and the spouse does not know
about the fact at the time of marriage, then it could be a valid
ground for the spouse to file petition for judicial separation.
Grounds for 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 leading a holy life. 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 is not found for 7 or more years and their relatives
or any other person have not heard from him/her or it is
believed that he/she may be dead. Here, the other spouse can
file for judicial separation.
Grounds for Judicial Separation
Bigamy [Section 13(2)(i)]- It means if the husband is
remarried while he is already married, both of his wives have
a right to claim the petition for judicial separation with a
condition that, the other wife is also alive at the same time of
filing.
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.
Differences between judicial separation and
divorce:
S.No. JUDICIAL SEPARATION DIVORCE
01. Defined under section 10 of Hindu marriage act. Given under section 13 of the Hindu marriage act.
02. The party cannot marry after the legal separation. The parties are free to marry with any person after
the decree of court.
03. There are possibilities of reconciliation. No possibility of reconciliation after the decree.
04. The aggrieved party can file the petition at any The divorce petition can only be filed
time after the marriage. afterthecompletion of one year of marriage.
05. There is only one stage of judgement that ifthe There is two-step process for divorce, firsttime for
given ground satisfies, the decree canbe passed. reconciliation, then divorce.
06. It is a temporary suspension of marriage. Divorce brings the marriage to an end point.
Conclusion:
• Before 1955, there was no provision for
separation or divorce. Reforms introduced in
the Hindu Law by way of legislation and
amendments is a welcome step by the
government.
• The two relieves granted by the HMA, 1955
have proven to be effective in resolving
disputes between parties by giving them an
opportunity to reconcile their difference or by
releasing them from maritalities.
THANKYOU!
