Judicial Separation/Divorce under the Hindu Marriage Act, Grounds, Remedy, Cases
- Judicial Separation under Law
- Grounds for Judicial Separation
- Difference between Divorce and Judicial Separation
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.
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 favour 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 cohabit.
Section 10 reads as follows:
(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:
- a) Adultery [Section 13(1)(i)]: It means that when any of the party to a marriage voluntarily had sexual intercourse with any person other than his/her spouse, the aggrieved party can seek for relief. Provided such intercourse took place after the solemnization of marriage.
- 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.
- 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.
- 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.
- f) Unsound Mind [Section 13(1)(iii)]: If a spouse in a marriage is suffering from a mental disorder which makes it impossible for the other spouse to live with the sufferer, the other spouse can file for a decree of judicial separation.
- 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.
- 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.
- h) Renounced the world [Section 13(1)(vi)]: If one spouse has renounced the world, the other one has sufficient ground for seeking relief of judicial separation.
- 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:
- 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.
- 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.
- c) Decree of Maintenance [Section 13(2)(iii)]: If a decree or order for maintenance has been passed in favour of the wife, and the parties have not started cohabiting even after one year of the passing of the maintenance decree, the wife has a ground for filing for judicial separation.
- d) Repudiation of Marriage [Section 13(2)(iv)]: If the marriage of a women has been solemnized before her attaining the age of 15 years, the wife has the right to claim judicial separation on the attainment of age 15.
Difference between Divorce and 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.|
|Divorce is for the purpose of ending a marriage.||Judicial separation merely suspends the marriage temporarily.|
|After passing of a decree of divorce, there is no possibility of reconciliation of the parties.||After passing a decree of judicial separation, there’s still the possibility of reconciliation of the parties.|