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Judicial Separation Under Hindu Law

The concept of marriage is to establish a relationship between the husband and wife. According to old Hindu Laws, marriage is the formal ceremony and is a religious tie that cannot be broken. According to Smritikars, even death cannot break the relationship between a husband and a wife. The object of marriage is to permit a man and a woman to complete the religious duties of the life made by God.

According to earlier scriptures, a man was imperfect without a woman and a woman (ardhangini) is also incomplete without her husband.
In modern laws, if a person does not want to stay in married life and does not want to extend any longer then he/she can request relief under the Hindu Marriage Act, 1955 by way of the Judicial Separation.

The concept of Judicial Separation

Judicial Separation is a medium under the law to give some time for self-analysis to both the parties of a disturbed married life. Law gives a chance to both the husband and wife to rethink about the extension of their relationship while at the same time guiding them to live separately. By doing this, the law allows them the free space and independence to think about their future path and it is the last option available to both the spouses for the legal breakup of the marriage.

Section 10 of the Hindu Marriage Act, 1955 provides the Judicial Separation for both the spouse, those who are married under the Hindu Marriage Act, 1955. They can claim the relief of Judicial Separation by filing a petition. Once the order is passed, they are not bound to have cohabitation.

Judicial separation:

  1. Either party 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.

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.

Every petition should according to Order VII Rule 1 of the Civil Procedure Code, 1973 must contain
  • The date and place of marriage
  • The person should be a Hindu, by his/her affidavit.
  • Name, status, address of both the parties
  • Name, DOB and gender of children (if any).
  • Details of litigation filed before filing the decree for judicial separation or divorce.
  • For the judicial separation, the evidence should prove the grounds.

Grounds for Judicial Separation

It is given under Section 10 of the Act; the spouse can file a petition for judicial separation on the basis of the following grounds:
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.

Case:
Revathi Vs. Union of India and Ors:
In this case, the Court held that Section 497 of IPC is prepared like, a husband cannot prosecute the wife for defiling the sanctity of the married tie by the charge of adultery. The law does not permit the husband of the offending wife to prosecute his wife and the wife also has not permitted to prosecute the offending husband for being disloyal to her. Therefore, both the husband and wife have no right to strike each other with the weapon of criminal law.

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.

Case:
Shyamsundar Vs. Santadevi:
In this case after the marriage, the wife was badly harmed by her husbands relatives and the husband also stood lazily, taking no steps to protect his wife.

The Court held that the intentional neglect to protect ones own wife amounts to cruelty on the husbands part.

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.

Case:
In the case, Guru Bachan Kaur Vs. Preetam Singh, the husband filed a petition for divorce after 7 years of declared desertion and never understood the problems of the wife who was also a working woman. But the wife was willing to live with her husband at her house in the place of her service.

The High Court held that there is nothing like mutual desertion. One party has to be guilty in desertion.

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.

Case:
In Durga Prasad Rao Vs. Sudharshan Swami, it was observed that in every conversion case, formal rejection of religion or operation of the sacrificial ceremony is not essential. Therefore, in the case of conversion, the question of fact arose.

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.

Case:
Anima Roy Vs. Prabadh Mohan Ray (AIR 1969) in this case, the respondent was found suffering from an abnormal disease after 2 months of marriage. The doctor who checked the respondent also could not find the particular time of starting the illness. Therefore, it was held that disease was not proved at the time of marriage.

Leprosy [Section 13(1)(iv)]:
If any spouse suffering from any disease like leprosy, which cannot be recovered, then the other party can file a petition for judicial separation because he/she cannot waste their own time due to the sufferer.

Illustration:
A a sufferer of an abnormal disease and B is the wife of A. If A is suffering from a disease that is incurable and the doctor also can not understand the disease. In this case, B can file a petition for judicial separation if she doesnt want to continue with her husband.

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.

Illustration:
A is suffering from an abnormal disease that is spread by communication. The disease which is irrevocable. In this case, B the wife of A can file a petition for the judicial separation in good faith for their future of the two children.

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.

Illustration:
If A changed his religion and went somewhere, where people also cannot find him. B the wife of A got hurt so much by hearing this news. Therefore, she can file a 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.

Illustration:
A and B have been husband and wife for 4 years and suddenly the husband disappeared for about 8 years. B as his wife she did her best to find her husband in these 8 years but she couldnt find him. Then, B can file the judicial separation for this case.

Additional grounds for the wife to claim justice
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.

Illustration: A and B are the husband and wife for 5 years and they are happy with their family. Suddenly A remarried another woman C without the consent of his 1st wife B and C also did not have any idea that A is married earlier. When B and C got to know about this. B can file a petition for judicial separation.

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.

Illustration: A and B are the husband and wife from 3 years, if the husband A raped any other woman and he is found guilty for that, then, in this case, the wife B can file the petition for judicial separation.

Repudiation of marriage/A option of puberty [Section 13(2)(iv)]- If a girls marriage happened before attending 15 years of age, then, she has a right to claim judicial separation.
Illustration: There is a girl of 14 years old and she is from a tribal area. There, child marriage is a very common nature, her parents give her as a present to the bridegroom without her consent. After marriage, this Act does not allow for leaving a relationship without any valid reason. There should be particular grounds on which the spouse can file a case for judicial separation or divorce.

This Act has a great rule to solve the disputes between the spouses and free them from marital ties. In this case, she filed a petition for judicial separation because of her below age.

Difference between Judicial Separation and Divorce

Judicial Separation Divorce
It is provided under Section 10 of the Hindu Marriage Act, 1955. It is provided under Section 13 of the Hindu Marriage Act, 1955.
A petition for judicial separation can be filed at any time after marriage. A petition for divorce can be filed only after one or more years of the marriage.
It only temporarily suspends the marriage. It is the end of the marriage.
An act of adultery is a very big ground, by which anyone files the petition. The husband and wife must be living in an adulterous relation then only a party can file for divorce.

Conclusion
A marriage is considered as a sacred relation in our nation but a person should have an exit from a relationship when he/she is not happy with that relation. People have faith towards the Hindu Marriage Act, 1955 that they can seek relief from the marriage by filing a divorce.

This Act does not allow for leaving a relationship without any valid reason. There should be particular grounds on which the spouse can file a case for judicial separation or divorce.

This Act has a great rule to solve the disputes between the spouses and free them from marital ties.

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