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Comparative Study Relating To Judicial Separation According To Different Religions In India

According to Merriam Webster's 'Dictionary of Law', the term 'marriage' has been defined as "the state of being united to a person of the opposite sex as husband or wife in a legal, consensual and contractual relationship recoganised and sanctioned by and dissolvable only by law".1

Marriage as an institution is a profound commitment where not just two individuals, but two families, cultures, and histories converge. This union symbolizes the merging of diverse perspectives and strengths, forming a partnership. It may have different implications in different cultures but it as an institution exists everywhere.

It is clear that marriage is an important aspect of every person's life. For the longest time it was believed that this union is unbreakable but that notion has now began to change. Under various personal laws and marital laws in India, it has now become possible for marital relationships to be put to an end through the means of 'Judicial Separation'.

It is important to understand that judicial separation is different from a divorce. 'Separation' takes place when spouses in a wedding stop dwelling collectively without getting divorced.2

It is said to be a tool, which is provided to, couples who to end their marriage entirely but only want to suspend some rights and obligations in marriage.

In India whenever a suit for divorce is filed the courts in their judicial rights never out rightly enforce a divorce at the very first instance.

"A judicial separation is a tool that Indian courts have developed that, despite having a character similar to that of divorce, gives both parties to a difficult marriage some time for introspection in an effort to avert the dissolution of the marriage by divorce.3"

Scope Of Research
The scope of research on judicial separation in India encompasses a multifaceted exploration of the legal, cultural, and social dimensions inherent to diverse personal marital laws. With India's intricate legal landscape, characterized by various religious and cultural norms, understanding judicial separation necessitates a comprehensive analysis of how different personal laws govern marriage, separation, and related aspects.

This inquiry delves into the intricacies of the legal framework governing judicial separation, analyzing the evolving jurisprudence, statutory provisions, and case law that shape its implementation.

By navigating through Hindu, Christian, Parsi and other personal laws, this study aims to unravel the grounds for a judicial separation, the consequences and the limitations of it.

This research seeks to offer a comparative & comprehensive understanding of judicial separation in India by understanding the commonalities, discrepancies, and potential reforms in the realm of marital dissolution.

Through this endeavor, a nuanced comprehension of judicial separation in India emerges, paving the way for informed discussions, policy considerations, and legal advancements in this intricate domain.

What Is Judicial Separation & It's Various Statutes
"As per the Collins Dictionary, a judicial separation means "a court decree requiring a married couple to cease cohabiting but not dissolving the marriage".4

To simply put Judicial Separation is a legal mechanism by which a couple is separated although still being in the bond of marriage.5"

Derived from the English notion of "mensa et thoro" which means "relating to a separation in which the parties remain husband and wife but without cohabitation"6 this concept entails a separation sanctioned through a court decree, allowing a troubled marriage a period of contemplation and self-assessment.

In India, the laws of judicial separation vary based on different religions due to the country's diverse religious and personal law systems.

Here are the main statutes that govern the laws of judicial separation under different religions:
  1. Hindu Marriage Act, 1955: For Hindus, Buddhists, Jains, and Sikhs, the Hindu Marriage Act provides provisions for judicial separation. Section 10 of the Act outlines the grounds and procedures for obtaining a decree of judicial separation.
  2. Christian Personal Law: The Indian Divorce Act, 1869, applies to Christians and provides for both judicial separation and divorce. Section 22-25 of the Act outlines the grounds for judicial separation and the corresponding procedures.
  3. Parsi Marriage and Divorce Act, 1936: For Parsis (Zoroastrians), the Parsi Marriage and Divorce Act contains provisions for judicial separation. Section 34 of the Act lays out the grounds and procedures for obtaining a decree of judicial separation.
It is important to note that the concept of obtaining respite through judicial separation is absent in Muslim law. In the case of Rahmat Ullah and Khatoon Nisa v. the State of U.P. (1994)7, it was noted that while Muslim Personal Law, also known as Shariat Law, acknowledges the idea of talaq, or divorce, it does not recognize or encompass the notion of 'judicial separation' as delineated in the Hindu Marriage Act and the Special Marriage Act.

While there is no specific legislation granting the remedy of judicial separation to spouses, certain landmark cases have expanded the grounds outlined in Section 2 of the Dissolution of Muslim Marriages Act, 1939, which pertains to the dissolution of marriage based on reasons aligned with judicial separation.

Grounds For Judicial Separation
Under The Hindu Marriage Act, 1955
For the longest time, marriage was regarded as 'sacrosanct' relationship, which was though to be unbreakable. One of the oldest law books, the Manusmriti, had also ruled that a marriage couldn't be nullified. However, over a period of time numerous new laws have come into place, which make this possible.

Section 10 of the Hindu Marriage Act, 1955 establishes the provision of judicial separation for both the spouses.
This section was later remodeled and presently, the grounds for divorce as given under section 13(1) and 13(2) have been made the grounds for judicial separation.

In the case of Subbarama Reddiar v. Sakaswathi Ammal 8, the Madras High Court thoroughly examined the essence and extent of Judicial Separation, noting that if a spouse requests judicial separation based on the stipulated grounds outlined in Section 13 of the Hindu Marriage Act, 1955, such relief could be granted.

These are the various grounds on which a judicial separation can be obtained according to the provisions of section 13.
  • Adultery
  • Cruelty
  • Desertion
  • Conversion
  • Mental Illness or Unsoundness of Mind
  • Venereal Illness
  • Renunciation
  • Missing for seven years
  • Bigamy
  • Husband guilty of Bestiality, Sodomy, or Rape

Under The Christian Law: The Divorce Act, 1869
The Indian Christian Marriage Act, 1872, encompassed several regulations concerning marriage and other aspects of the Christian community.

Christian weddings are conducted in accordance with Christian traditions, rituals, and practices, overseen by a Minister of Religion, a church clergyman, or another religious authority. These marriages are also formalized through contractual arrangements as given under section 4 & 5 majorly.

"Matters pertaining to divorce and the termination of marriage were outlined in the Divorce Act, 1869. Sections 22 to 25 of the Divorce Act, 1869, provide Christian spouses the opportunity to secure a decree for judicial separation based on grounds such as adultery, cruelty, or abandonment exceeding a period of two years. This decree operates akin to a "divorce a mensa et toro," effectively severing the cohabitation of the husband and wife while maintaining the marriage itself."

In the case Amarthala Hemalatha v. Dasari Rajendar Varaprasad 9 the provisions under section 22 were upheld and the court held that a decree of judicial separation only has the effect of a divorce 'a mensa et toro' and does not have any other effect.

The term 'a mensa et toro' literally means 'from table and bed or from board and bed'. It is a term, which is used to signify a partial divorce.10 The effect of partial divorce was decided in the case of R.S. Manual Raju v. Mary Sara.11

The decree is also subject to potentially be reversal as per Section 26 of the Divorce Act, which can be initiated through the appeal of the spouse of the party who initially sought the judicial separation decree. This reversal can be pursued on the basis of the absent party's non-participation during the judicial separation petition. Upon satisfying the court's assessment, a decree for the reversal can be granted.

Under The Parsi Marriage And Divorce Act, 1936
In the Parsi faith, marriage is regarded as a contractual arrangement and is formalized through a ceremony referred to as 'Ashirvad,' during which the priest bestows blessings upon the wedded pair in the presence of two Parsi witnesses.

Under the Parsi Marriage and Divorce Act of 1936, provisions concerning the annulment of marriage, divorce, and judicial separation were established to provide recourse for married couples facing difficulties.

Section 34 of the Act enables the initiation of 'suits for judicial separation,' which can be initiated by any Parsi husband or wife based on the reasons delineated in the Act for divorce as specified in Section 32.

These grounds parallel those stated in the Special Marriage Act of 1954 and the Hindu Marriage Act of 1955.

Consequences Of Judicial Separation
Following the arrangement of judicial separation, the marital partners are not bound to reside together any longer. While their legal standing as a married couple remains intact, the act of living together or co-habitation is put on hold.

Section 376B of the Indian Penal Code, 1860 offers legal protection to a separated wife. It stipulates that if, following a judicial separation decree, the husband engages in sexual intercourse with her against her will, he can be subjected to legal consequences. The prescribed penalty for such an offense ranges from a minimum of 2 years to a maximum of 7 years of imprisonment.

A separation agreement prohibits the individuals from entering into new marriages as they remain legally bound as husband and wife. Moreover, if they were to remarry, they might face charges of bigamy. This was held in the case of Narasimha Reddy v. Basamma (1975).12

In the event of one spouse's demise during the validity of the separation agreement, the surviving spouse would typically inherit the assets. In the case of Krishna Bhattacharjee v. Sarathi Choudhary13, the Supreme Court acknowledged the wife's right to 'stridhan' subsequent to a judicial separation agreement. As per this ruling, the rights to property for the spouses after a judicial separation remained consistent with their rights prior to the separation.

An essential precondition for a lawful separation is the existence of a valid marriage between the parties. In cases of marriages deemed invalid, the possibility of a separation agreement arises. However, in situations where the marriage is voidable, the circumstances could diverge.

On occasion, the court issues a judicial separation decree for a duration of one year, allowing the spouses the chance to deliberate on either pursuing reconciliation or divorce. This timeframe affords them the opportunity to reflect upon their marriage and offers a window for potential reconciliation.

This is done because it is always the priority of the court to safe a family rather than break a family.

Judicial Separation In Comparison To Divorce
In the discussion of Judicial Separation, it becomes evident that many of its provisions closely resemble those of divorce. Consequently, an essential question arises: "If both of these legal actions share a significant number of provisions, what are the distinctions between them, and why is this differentiation necessary?"

Both judicial separation and divorce are remedies provided by various laws to a spouse who experiences mistreatment within a marriage. They both serve as means to terminate the mutual rights and responsibilities in a marriage.
However, while legal separation doesn't completely dissolve the marriage, it is considered a "lesser evil" in comparison to divorce.

The fundamental marital relationship between the husband and wife remains unchanged; it simply separates them and prohibits cohabitation. The judgment of judicial separation can be reversed by resuming their marital obligations and rights toward each other or by choosing to live together once again.

In the case of Mozelle Robin Solomon v. Lt. Col. R.J. Solomon 14, the Bombay High Court"established that a distinction exists between the two terms. The court emphasized that a divorce decree carries the consequence of terminating the marriage and the marital connection, leading to an absolute separation between the individuals, both practically and legally.

Further in the case of Prakash Chandra Verma v. Prakashwati 15, the Allahabad High Court elucidated several distinct aspects that set apart judicial separation from divorce.

Judicial Separation represents a temporary suspension of mutual marital rights and obligations, whereas divorce signifies the complete termination of the marriage, with no possibility of reconciliation or further resolution.

In conclusion, Judicial Separation stands as a profound tool that affords couples in the midst of a strained marriage the opportunity to pause and reconsider before arriving at a final decision regarding their matrimonial bond.

This approach echoes the noble notion deeply rooted in our culture, which reveres marriage as a sacred commitment, beyond dissolution. Historical precedents illustrate how couples have been obligated to endure unhappy unions, often driven by societal pressures. The reluctance to pursue divorce, particularly for women concerned about reputation, necessitates alternative solutions.

While societal norms shift and divorce rates rise, the effectiveness of Judicial Separation lies in its ability to address contentious situations and prevent the fracturing of families.
The grace period it provides grants couples the space to reassess their choices and potentially find middle ground.

Notably, this instrument has demonstrated its efficacy in reuniting fractured families and upholding the sanctity of marriage as a cherished institution.

  1. Merriam-Webster's Editorial Staff (Ed.). (n.d.). Merriam-Webster's Dictionary Of Law (11th ed.). GOYAL Publishers & Distributors (P) Ltd.
  2. Judicial Separation. (n.d.). Judicial Separation.
  3. PANDEY, P. (2020, February 24). Judicial Seperation - Law Times Journal. Law Times Journal.
  5. Garg, R. (2022, August 20). Judicial separation - iPleaders. iPleaders.
  6. Definition of MENSA ET THORO. (n.d.). Mensa Et Thoro | Definition & Meaning - Merriam-Webster.
  7. 1994 SCC OnLine All 1072 : II (1994) DMC 64
  8. (1966) 79 LW 382 (Mad) (DB)
  9. AIR 1990 AP 220 : II (1991) DMC 194
  10. The Divorce Act, 1869. (2023). Law & Justice Publishing Co.
  11. AIR 1982 Kant 235 : ILR 1982 Kar 491
  12. AIR 1976 AP 77
  13. 2016 SCC OnLine MP 12184 : ILR 2017 MP 753
  14. 1983 All LJ 766
  15. A. (2023, June 14). JUDICIAL SEPARATION - Legal Vidhiya. Legal Vidhiya - Legal Vidhiya.

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