Judicial Separation/Divorce under Hindu Marriage Act, Grounds, Remedy, Cases
Judicial Separation/Divorce under Hindu Marriage Act, Grounds, Remedy, Cases

Judicial Separation/Divorce under the Hindu Marriage Act, Grounds, Remedy, Cases

 

Synopsis-

  • Introduction
  • Meaning
  • Judicial Separation under Law
  • Grounds for Judicial Separation
  • Difference between Divorce and Judicial Separation
  • Alternate Remedy
  • Case Laws
  • Filing petition for Judicial Separation
  • Conclusion

Introduction-

A marriage is a sacred relationship established between two persons through various rituals and customs. Prior to enactment of Hindu Marriage Act, 1955, there was no provision through which the persons in a marriage could get out of it because of its failure. With the enactment of HMA, the persons in a marriage do not need to stay in it and suffer anymore as they can seek relief under the Act by way of Judicial Separation or a decree of Divorce.

 

Meaning-

Judicial separation is a means through which the parties can seek permission from the court for not being bound to cohabit with each other. It is a decree passed by the court in favor of the petitioner. A decree of Judicial Separation only suspends matrimonial rights and duties during the period in which the decree subsists and does not operate as an order for dissolution of marriage.

The parties in the marriage continue to have the same titles i.e. of a husband and wife and are not allowed to remarry.

 

Judicial Separation under Law-

Section 10 of the Hindu Marriage Act, 1955 deals with the Judicial Separation and provides that any party to a marriage, solemnized before or after the commencement of HMA, 1955 can seek relief of judicial separation by filing a petition. Once a decree for judicial separation is passed, they are not bound to have cohabitation.

Section 10 reads as follows:

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.

 

Grounds for Judicial Separation-

It has been provided under Section 10 of the Act that the parties to a marriage can file a decree for judicial separation on the following grounds:

  1. a) Adultery [Section 13(1)(i)]: It means that when any of the party to a marriage voluntarily had a sexual intercourse with any person other than his/her spouse, the aggrieved party can seek for the relief. Provided such intercourse took place after solemnization of marriage.
  2. b) Cruelty [Section 13(1)(i-a)]: When a party to a marriage treats the other party with cruelty after the marriage has been solemnized, the aggrieved can file a petition on the ground of cruelty.
  3. c) Desertion [Section 13(1)(i-b)]: As per this section, a person is said to be deserted when he/she has been left by the spouse for a period not less than two years immediately before presenting such petition. Desertion gives a right to seek relief of judicial separation
  4. d) Conversion [Section 13(1)(ii-i)]: If any of the spouses gets converted into a religion other than Hindu, the other spouse can file for Judicial Separation.
  5. f) Unsound Mind [Section 13(1)(iii)]: If a spouse in a marriage is suffering from a mental disorder of sort which makes it impossible for the other spouse to live with the sufferer, the other spouse can file for a decree of judicial separation.
  6. e) Leprosy [Section 13(1)(iv)]: If a party to a marriage is suffering from leprosy which cannot be cured, the other party can seek judicial separation as a remedy to get out of such marriage.
  7. g) Venereal Disease [Section 13(1)(v)]: A venereal disease in a communicable form is also a sufficient ground for filing a petition for judicial separation.
  8. h) Renounced the world [Section 13(1)(vi)]: If one spouse has renounced the world, the other one has a sufficient ground for seeking relief of judicial separation.
  9. i) Civil Death [Section 13(1)(vii)]: If the other party has not been heard alive for a period of 7 or more years by the people who would have heard of him/her if he/she were alive.
  • Apart from the above mentioned grounds, a wife is entitled to seek relief of judicial separation under Section 13(2) on the following grounds as well:
  1. a) Bigamy [Section 13(2)(i)]: Bigamy means two marriages at the same time. If the husband has remarried when he is already married, both of the wives have a right to file for judicial separation if the other wife is alive at the time of such filing.
  2. b) Rape, Sodomy or Bestiality [Section 13(2)(ii)]: A wife has a right to present a petition for judicial separation if her husband is guilty of charges like rape, sodomy or bestiality.
  3. c) Decree of Maintenance [Section 13(2)(iii)]: If a decree or order for maintenance has been passed in favor of the wife, and the parties have not started cohabiting even after one year of passing of the maintenance decree, the wife has a ground for filing for judicial separation.
  4. d) Repudiation of Marriage [Section 13(2)(iv)]: If marriage of a women has been solemnized before her attainment of 15 years of age, the wife has a right to claim judicial separation on attainment of age of 15 years.

 

Difference between Divorce and Judicial Separation-

Divorce Judicial Separation
It has been provided under Section 13 of Hindu Marriage Act, 1955. It has been provided under Section 10 of 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 if the parties have completed one year in the marriage.
Divorce is for the purpose of ending a marriage. Judicial separation merely suspends the marriage temporarily.
In divorce, the party to a marriage must be living in an adulterous relation; only then a party can file for a decree of divorce. For judicial separation, an act of adultery is a sufficient ground.
After passing of a decree od divorce, there is no possibility of reconciliation of the parties. After passing a decree of judicial separation, there’s still possibility of reconciliation of the parties.

 

Alternate Remedy

With the passing of Amendment Act of 1976 to the Hindu Marriage Act, 1955, the parties have become entitled to seek a decree of divorce for the dissolution of a marriage under Section 13 (1-A) (i) on the ground that a decree for judicial separation has been passed and the parties did not cohabit even after the period of one year of passing of a such decree for judicial separation.

 

Case Laws-

  • Narasinmha Reddy v. M. Boosamma: In this case, it has been held by the court that the passing of a decree of judicial separation do not end the marital status of the parties.
  • Menthena Siromani v. M. Venkateswara Raju: The case was with the Andhra Pradesh High court and it has been held by the court that where a party failed to establish that there exist grounds for obtaining a divorce, the decree of judicial separation will not be granted.
  • Gomathi v. Kumaragurrupaan: In this case, it was held that where a decree for judicial separation has been passed and the parties did not cohabit even after the period of one year of passing of such decree for judicial separation, a petition for divorce can be filed. The period of one year shall be calculated from the date or original order of the trial court even if such order has been appealed against in the higher court.
  • Sohan Lal v. Kamlesh: It has been held in this case that when the court has passed a decree of judicial separation, a husband can be ordered to give maintenance to the wife if she cannot maintain herself.

 

Filing petition for Judicial Separation-

Any aggrieved party to a marriage can file a petition for judicial separation in a district court with whose jurisdiction:
  1. i) The marriage between the parties was solemnized;
  2. ii) The respondent resides at the time of filing such petition;

iii) The parties to the marriage resided together the last time;

  1. iv) The petitioner is residing if the respondent is residing outside Indian Territory.
  • Every petition, according to Order VII, Rule 1 of Civil Procedure Code, must contain:
  1. The date on which and the place where marriage took place
  2. Affidavit stating that the person is Hindu
  • Name, Domicile and Status of both the parties
  1. Name, Date of Birth and Gender of children (if any)
  2. Details of litigation filed before filing a decree for judicial separation/divorce
  3. Evidence proving that grounds for judicial separation exists.

Conclusion

Although marriage is considered as a sacrament in our nation but a person must have an exit from a relationship which he/she is not happy with. With the enforcement of Hindu Marriage Act, 1955, people were relieved as they could seek relief from a marriage through decree of divorce.

The Act does not provide for leaving a marriage without any reason as it has provisions for particular grounds on which the parties can file for judicial separation or divorce. Thus, Hindu Marriage Act, 1955 has proven to be a great reform in terms of dispute resolving between parties in Hindu Marriages as it gives them an option to reconcile through Judicial Separation and also a relief by freeing them from marital ties.

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