Study Notes: Judicial Separation under Hindu Law

By Abhishek Kaushal 12 Minutes Read

Introduction

A husband or wife have several grounds for breaking up of the marriage. But before, a divorce is granted, a decree may be passed which provides the parties with time to rethink about their decision. This decree is known as judicial separation. A chance is provided to husband and wide to introspect the situation of their marriage. The decree lifts the obligation of Cohabitation between husband and wife. Separating provides the husband and wife with independent space to rethink and discover all options, like resumption of cohabitation, before getting a divorce. The allows the parties to live separately, without granting decree of divorce; as a result,  the marital status does not end[1], but mere suspension of marital rights and duties and hence, separated parties cannot remarry.

Provision under Hindu Marriage Act, 1955

Section 10 of Hindu Marriage Act, 1955 provides for the grounds upon which the decree of judicial separation shall be passed and the effect of such decree. The section includes marriages that were solemnised before or after the commencement of this act. Further, it also includes provision for rescission of decree for judicial separation. A decree may be passed on the grounds (given below), if a petition is presented before the court for judicial separation. In addition to this, courts have a discretionary power to grant a separation instead of divorce in a petition for divorce[2]. This period shall be counted from the date of the order from the Trial Court[3].

Grounds for Judicial Separation

After the 1976 amendment in Hindu Marriage Act, 1955, grounds for judicial separation merged with that of divorce, section 10 includes grounds given under section 13(1) for both husband and wife and 4 extra grounds, specifically for the wife under section 13(2). The various grounds under the subsections are as follows,

1. Grounds for both husband and wife, section 13(1)

• Adultery [S. 13(1)(i)] – When husband or wife have sexual intercourse with any other person than his wife or her husband then such act would have committed adultery. Husband or wife, whose spouse has committed adultery shall file a petition for decree of judicial separation. Therefore, when the wife stayed in hotel room with a stranger, she is guilty of adultery[4].

• Cruelty [S. 13(1) (ia)] – When husband or wife treats his/her spouse with cruelty, the aggrieved party can file for judicial separation. Therefore, when the appellant was harassed and tortured by the respondent, such act amounts to cruelty[5].

• Desertion [S. 13(1)(ib)] – If husband or wife leaves his or her spouse for a continuous period of two years or more. The petition for judicial separation under this ground shall be presented after the period of two continuous years has passed.

• Conversion [S. 13(1)(ii)] – When one partner converts to another and ceases to be Hindu. Such act shall become a ground for Judicial separation for the other spouse.

• Insanity [S. 13(1)(iii)] – When one partner is suffering from unsoundness of mind or an incurable mental disorder, which destroys marital harmony. In such situation, the other party can file a petition for judicial separation.

• Venereal Disease [Section 13(1)(v)] – When husband or wife are suffering from a venereal disease like leprosy, which is an communicable form. Then the other party can file for such decree.

• Renunciation [S. 13(1)(vi)] – When husband or wife has renounced the world and entered into a religious order, hence becoming civilly dead. Then the other person can file for such decree.

• Presumption of death [S. 13(1)(vii)] – A spouse is presumed to be dead if no one has heard of such person for a period of 7 years or more. The persons included in this section are those who would heard for the presumed to be dead person, if he would have been alive. If a person is presumed to be dead under this section, the other spouse can file an application by petition for judicial separation. It should be kept in mind

2. Grounds specifically for wife, section 13(2)

• Polygamy [S. 13(2)(i)] – This section talks about polygamy committed by the husband, where the marriage was solemnised before commencement of this act. The section imposes a condition for the wives to file for judicial separation, that at the time of such petition being filed, the other wife should also be alive.

• Rape, Sodomy or Bestiality [S. 13(2)(ii)] – If the husband has been guilty of offences like rape, sodomy or bestiality, since the marriage was solemnised, then the wife can file for judicial separation.

• Cohabitation not resumed even after order of maintenance [S. 13(2)(iii)] – If after the decree of maintenance under section 18 of Hindu Adoptions and Maintenance Act, 1956 or an order of maintenance under section 125 of Criminal Procedure Code, 1973 had passed and there was no resumption of cohabitation of parties even after one year from the date of order/decree. Then it shall become a ground for the wife to file a petition for judicial separation.

• Option of Puberty [Section 13(2)(iv)] – When a girl gets married before the age of 15 years, then she can file a petition for judicial separation, irrespective of the fact whether the marriage was consummated or not.

Difference between Judicial separation and Divorce

Rescission – While decree of Judicial Separation can be rescinded, decree of divorce cannot be rescinded. Parties can start living together again when a decree of judicial separation has been passed but not when decree of divorce is passed.

Marital Rights and Duties – While judicial separation suspends the marital rights and duties of husband and wife, divorce severs the marital rights and duties.

Reconciliation – As in Judicial Separation, marital status does not end, reconciliation between husband and wife is possible, whereas, in divorce marital status comes to an end and there is no scope of reconciliation without remarrying.

Effect of Intercourse – While a decree for judicial separation is in effect, marital intercourse between husband and wife shall render the decree ineffective. In case of divorce, there is no effect of intercourse on the decree.

Succession to property – In case one spouse dies during a decree of Judicial Separation subsists, other spouse shall inherit deceased spouse’s property, whereas, in case of divorce, other spouse has no right to inherit the deceased spouse’s property.

Effect of Decree for Judicial Separation

Section 10(2) specifically states that if such decree is passed, the obligation of petition to live together with the respondent shall be lifted. The decree for judicial separation can be rescinded (if the court considers it to be just reasonable) when either husband or wife makes an application by petition and the court is satisfied that the statements made in petition are true. If after passing of such decree, cohabitation has not resumed for a period of one year, then it can become a ground for divorce[6].

Conclusion

Marriage is a holy union that binds two people and their families for life. Such a relationship comes with burden of responsibilities and confusion for the married couple in relation to their future. These burdens may lead to discord and tension between the couple, where they would be willing to break up the marriage. In such situation, they might even consider to stay away from each other. But, if they do not cohabit for a long period of time, it may be hazardous for marriage. Remedy of restitution of conjugal rights shall be helpful in this time. Another remedy could be consultation given by family and friends. They might be able to understand the couple’s problem and help restore the marriage. For that matter, mediation can also come to as a solution for the couples in their arduous times.

Such efforts towards getting relief are done to restore the marriage till there is some hope in marriage. When there is no hope left for the marriage to survive, then court grants a decree for separation. The period of separation is like a divorce where the marital status of husband and wife stays intact, but it helps them to understand and find options before breaking up the marriage. Again the idea is to give as much time possible to the couple to comeback and repair the damaged relationship.

[1]. Narasimha Reddy vs. M Boosamma, AIR 1976 AP 77.
[2]. The Hindu Marriage Act, 1955, ss 13A.
[3]. Gomathi vs Kumaraguruparan, AIR 1987 Mad 259
[4]. White v. White AIR 1958 SC 441.
[5]. Nijhawan v. Nijhawan, AIR 1973 Del 200.
[6]. The Hindu Marriage Act, 1955, ss. 13(1A). 

Abhishek Kaushal