Section 10 in The Hindu Marriage Act, 1955 states about Judicial separation.
(1) Either patty 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.]
(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.
Voidable marriages are those which are void at the option of the aggrieved party. Such marriages can be annulled by a decree of nullity on any of the following grounds:
• That the marriage has not been consummated owing to the impotence of the Respondent.
• That the marriage is been performed with a person of unsound mind or having a mental disorder or suffering from recurrent attacks of epilepsy
• That the consent of the Petitioner or its Guardian was obtained by force or by fraud as to the nature of the ceremony or as to any material fact or circumstances concerning the Respondent.
• To succeed on this ground, it is necessary that the Petition must be presented in the Court within one year after the force has ceased to operate or the fraud has been discovered. It is also necessary that after the force has ceased or fraud discovered, the Petitioner has not, with consent, lived with the other side.
Divorce By Mutual Consent
When the husband and wife both agree that their marriage cannot succeed, they may decide to get a divorce by mutual consent. It is not necessary to give any reason to the court for such a divorce. They must file a divorce petition in the district court. However the following should be considered
• Both the husband and wife are living separately from last 1 year.
• Both of them had agreed that they can’t stay together.
• None of them has been forced to give the application.
The court will not take any action on the application for 6 months so that the husband and wife can reconsider their decision. After a period of 6 months from the date of presentation of the petition and not later than 18 months, if the petition is not withdrawn, the court will grant the decree of divorce. The court must however be satisfied about the bonafides and consent of the parties. If one of the parties withdraws the consent, the court makes an inquiry in this regard and if there is no consent at the time of the enquiry, it cannot pass the decree of divorce.
The execution of the decree of restitution of conjugal rights is very difficult. The court though is competent to pass a decree of restitution of conjugal rights, but it is powerless to have its specific performance by any provision of law. Of course, the non-compliance of the said decree amounts to constructive desertion on the part of the erring party. As per provisions of the present Act, the aggrieved party can move a petition for a decree of divorce after a period of one year from the date of the passing of the decree and the competent court is fully authorized to pass a decree of divorce in favour of the aggrieved party.
But under no circumstances the court can force the erring party to consummate marriage. Another advantage is that the aggrieved wife can have from this provision is that she can claim maintenance from the husband.
Grounds Of Divorce
A petition for divorce may be presented by either the husband or wife for dissolving the marriage on the following grounds:
That the other party
1. Has after the marriage had voluntary sexual intercourse with any other person; or
2. Has after the marriage treated the petitioner with cruelty
3. Has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition,
4. Has ceased to be a Hindu by conversion to another religion,
5. Has been incurably of unsound mind or has been continuously or intermittently from a mental disorder that the petitioner cannot reasonably be expected to live with such a person,
6. Has been suffering from a virulent and incurable form of leprosy,
7. Has been suffering from venereal disease in a communicable form
8. Has renounced the world by entering any religious order.
9. Has not been heard of as being alive for a period of seven years or more by persons who would have naturally heard of it, had that party been alive.
In a case, Dr. Narpat Singh Gehlot vs Shri Krishna Kumar And Chandra,
1. These are two connected revision applications by Dr. Narpat, Singh Gehlot, Assistant Professor, Electrical
Engineering Department, Indian Institute of Technology, Kanpur. They arise out of two suits for maintenance
filed against him by his wife Smt. Chandralekha and his son Krishma Kumar alias Ajai respectively in the
Court of Munsif City. Jodhpur, on 30-3-72 Dr. Narpat Singh Gehlot filed an application under Sections 9 and
10 of the Hindu Marriage Act for restitution of conjugal rights or judicial separation in the alternative, in the
court of Second Civil Judge, Kanpur, against his wife Smt. Chandra Lekha on 25-1-72 He filed an application
in the Court of the City Munsif, Jodhpur, for stay of the proceedings in the two suits under Section 10, Civil
PC read with Section 151, Civil P.C. Both these applications were rejected by the learned Munsif and the
present revision applications have been filed against his orders.
2. Dr. Narpat Singh Gehlot was married to Smt. Chandralekha at Jodhpur on 17-5-70. Since then they had
been living as husband and wife at Jodhpur and then at Kanpur where Dr. Gehlot is posted. Smt.
Chandralekha became pregnant at Kanpur and left for her father's house in Jodhpur from Kanpur on 27 9-70.
A son was born to her at Jodhpur on 3-4-71. Dr. Gehlot came to Jodhpur to take her back to Kanpur but she
refused to go with him.
Learned Counsel for Dr. Gehlot drew my attention to Clause (e) of Sub-section (2) of Section 23 of the
Hindu Adoptions and Maintenance Act, and contended that whether or not any maintenance is to be granted to
the infant son would depend on whether he is justified in living separately On the other hand, on behalf of the
infant son my attention was drawn to Section 6(a) of the Hindu Minority and Guardianship Act which lays
down that the custody of a minor who has not completed the age of five years shall ordinarily be with the
mother. Whether the infant son will he entitled to separate maintenance is a question which will have to be
gone into if & when the occasion for it arises. It is unnecessary to go into this question at this stage. I express
no opinion on the question as to whether the learned Munsif will be justified in staying the suit under Section
151, Civil P.C. in case he finds that the infant son will only be entitled to maintenance if his mother is entitled
to claim separate maintenance from her husband.
The revision application No. 258 of 1972 is accordingly dismissed.
In the circumstances of the case, I leave the parties to bear their own costs in both the revision petitions.
In a similar case, Sunder Singh v. Manna Sunder Singh, AIR 1962 Punjab 127, Gosain, J. held that an order awarding maintenance pendent lite and expenses of proceedings on a wife's application under Section 24 of the Hindu Marriage Act is appealable under Section 28, of the Act. Argument was advanced before the learned Judge at the words "under any law for the time being force" show that every order is not made appealable and that reference has to be made to the Civil Procedure Code to find whether such an order is a decree as defined in the Code or whether such an order is made appealable under any provision of the Code of Civil Procedure. This contention
was rejected and it was observed--
"It is difficult to conceive that the Legislature left the matter of maintainability of appeals on wholly uncertain
grounds and that for finding whether a particular order under this Act was or was not appealable the
Legislature intended to leave the parties to have recourse to the provisions of other laws."
In another similar case, Lachman vs. Meena, though there were cultural differences between the families of spouses and though she was not much welcomed in husbands family, her staying at parent’s home was considered as desertion. This was so because there was no reasonable justification presented by wife and hence husbands petition for judicial separation because of wife’s desertion for two years, was granted by the court.