Exploring The Differences Between Judicial Separation And Divorce Under The Hindu Marriage Acr 1955

INTRODUCTION

Family law deals with the primary societal institution – FAMILY. Matters of marriage, divorce, succession, guardianship, adoption, and inheritance fell under its ambit. To understand and apply the principles of family law it is pertinent for law aficionados to acknowledge the great deal of importance that amounted to the concepts of judicial separation and divorce, for dissolution of matrimonial bonds.

WHAT IS JUDICIAL SEPARATION?

Section 10 of the Hindu Marriage Act provides for relief of judicial separation. The concept of judicial separation was introduced in India through the Indian Divorce Act of 1869. The Indian Divorce Act of 1869 was a sizable development in Indian family law as it introduced formal legal procedures for spousal dissolution, including provisions for judicial separation, which was a concept derived from British common law. Judicial separation allows for the spouses to live apart while remaining married in the eyes of the law. Judicial separation is the lesser of the evils when it comes to dissolution of marriage under Hindu law. 

Section 10 of the Hindu Marriage Act governs the procedure for judicial separation, the section states that either the husband or wife can file for judicial separation on the grounds of cruelty, desertion, venereal disease, adultery, conversion, unsound mind, or any other reasonable ground. Before the amendment of this section in 1976, it provided judicial separation on six grounds viz., desertion, cruelty, leprosy, venereal disease, unsoundness of mind, and extra marital sexual intercourse. By the amendment in 1976, all these grounds of judicial separation were made grounds of divorce under section 13 (1) of the Act. The Madras High Court in the case of Subbarama Reddiar Versus Saraswathi Ammal in 1966 had observed that the grounds mentioned in section 13 for divorce can be used to seek judicial separation.

According to Section 19 of the Hindu Marriage Act, 1955, a petition must be filed in the District Court at any one of the following places, where:

1.    The marriage was solemnized.

2.    The respondent resides.

3.    The parties to the marriage last resided together.

4.    The petitioner resides under certain circumstances.

There are certain grounds for judicial separation which are available to the wife only. These are – bigamy (the husband has remarried during the lifetime of the first wife), rape, sodomy or bestiality ( since the solemnization of marriage husband has been found guilty of rape, sodomy or bestiality), non-resumption of cohabitation ( husband and wife haven’t restored cohabitation for 1 year) and repudiation of marriage( at the solemnization of marriage the wife had not reached the age of 15 years). 

After the court has awarded the decree for judicial separation the spoused are no longer required to cohabit in the society of their spouse. They can exist as separate individuals while still retaining their titles as husband and wife. However, this provision does not allow the couple to remarry. 

Sub-section (2) of section 10, confers power on the Court to rescind the decree of judicial separation on submission by either party if it considers it just and reasonable to do so. After the passing of the decree, no responsibility is cast on the parties to resume cohabitation. However, if one of the spouses is intent and takes the right steps to resume cohabitation, he/she can approach the Court to get the decree rescinded.

WHAT IS DIVORCE?

Divorce refers to the complete dissolution of the union between a husband and a wife. Divorce ensures that there now exists no duties and rights between the man and woman who were previously spouses. They are now not required to cohabit together or to fulfill the obligations associated with being spouses. Section 13 of the Hindu Marriage Act primarily deals with divorce for Hindus as well as Jains, Buddhists, and Sikhs. Section 13 lays down the grounds that are available to both spouses to seek divorce because of.

In the olden days, the concept of divorce was unknown to the Hindu law. As marriage was a sacramental union it was an indissoluble one. Manu declared that a wife can never be released by her husband either by sale or by abandonment, his statement implied that the marital tie between a husband and a wife could not be severed in any way. Divorce under Hindu law is simply acknowledged as an established custom due to the force of law as Hindu law has still not contemplated divorce properly.

According to the prominent concept of fault theory or the guilt theory, which governs the concept of divorce, a marriage can only be dissolved when either of the parties/ spouses in the marriage has committed a matrimonial offense. According to the theory, it is of utmost importance that there is a guilty as well as innocent party and it is only the right of the innocent party to seek the remedy of divorce. The Hindu Marriage Act, of 1955 originally, based divorce on the fault theory and enshrined nine fault grounds in Section 13(1) on which either the husband or wife could sue for divorce, and two fault grounds in Section 13(2) on which wife alone could seek the divorce. The 1976 Amendment Act inserted two additional fault grounds of divorce for the wife & a new section 13B for divorce by mutual consent. 

Currently, there are a total of nine grounds mentioned in section 13 of the Hindu Marriage Act. These grounds can be seen by either spouse.

Adultery (section 13 (1) i) - while there exists no clear definition of the matrimonial offense of adultery. It is stipulated that there must occur voluntary or consensual sexual relations between a married person and another person who is not their spouse. The marital status of such a person is inconsequential. Previously divorce was only granted on the grounds of adultery if the spouse was living a life of adultery wherein, they were committing the adulterer act repeatedly and living a dishonest life. However, after the Marriage Laws Amendment Act 1976 it is considered that even a single act of adultery is enough for a decree of divorce. As adultery is a grave offense against the institution of marriage it must be ascertained that the act of adultery took place while the marriage was subsisting. It is equally essential to ensure whether the sexual relations were voluntary. For example - A&B are married and while they are traveling are accosted by a group of robbers B is raped by the robbers at gunpoint against her will. This does not satisfy the grounds for adultery as B did not engage in sexual relations voluntarily. Therefore, a cannot divorce her on the grounds of adultery.

Cruelty (section 13 (1) a) - Cruelty can be physical or mental. It refers to conduct that causes the spouse to have a reasonable fear that living with the other spouse is or will be harmful. In the case of Savitri Pandey v. Prem Chandra Pandey, the Supreme Court defined cruelty as an act of great harshness and gravity which is sufficient to justify the plaintiff's conclusion that it is impossible to live with the defendant.

Desertion (section 13 (1) ib) - Desertion occurs when one party leaves the other party for at least two consecutive years without justifiable reason, without consent, or against wishes. In Laxman Uttamchand Kirpalani v. Meena Kirpalani, the Supreme Court made it clear that the desertion must be proved to have been deliberate.

Conversion (section 13 (1) ii) - If one party converts to another religion, this may be grounds for divorce if the other party does not wish to continue the marriage. In the case of Sarla Mudgal Vs. Union of India, the Supreme Court has ruled that converting a spouse to another religion without their consent can be grounds for divorce.

Unsound mind (section 13 (1) iii-ii) - If either party is incurably insane or suffers continuously or intermittently from a mental disorder of such a nature that the plaintiff cannot be expected to live with the defendant, this is a condition for divorce to become a reason. In Rajani v. Subramanian, the Madras High Court held that mental illness must be severe enough to make married life impossible.

Venereal disease/ leprosy (section 13 (1) iv)- If one party has a contagious sexually transmitted disease, the other party can apply for divorce. Mangat Mal Vs. Punia High Court of Punjab and Haryana has ruled that the presence of a sexually transmitted disease that endangers marital life can be a ground for divorce.

Renunciation (section 13 (1) v)- If one party renounces the world by joining a religious order, this may be grounds for divorce. In Smt.Leela v. Smt. Meera, the Bombay High Court ruled that renunciation of the world means complete and final renunciation.

Presumption of death (section 13 (1) vi) - If for more than seven years there is no report of a party being alive by those who would have naturally heard of the person, the person is presumed dead, and the marriage may be dissolved. Ganesh Prasad Gupta Vs. Pushpa Gupta, the Calcutta high court heard the case in which the plaintiff sought divorce on the ground of presumed death.

DIFFERENCE BETWEEN THE CONCEPTS OF JUDICIAL SEPARATION AND DIVORCE

Judicial separation is a more lenient remedy that helps the aggrieved spouse get away from the guilty party and make them feel remorse. This is different from divorce in many ways.

First, the effect of judicial separation is only the suspension of active conjugal life, but divorce creates a clean break and dissolves the marital bond.

Second, in the case of judicial separation, every consequence of a valid marriage exists, except that the parties are not forced to live together.

Thirdly, the parties have the right to continue living together at any time without the intervention of the Court, but to officially annul the decree, an application to the Court under section 10(2) is required.

But simply living apart by agreement without a court decision does not constitute judicial separation, the parties can continue to live together at any time and without intervention from the court.

While the judicial separation order is in force, sexual intercourse by the husband without the consent of the wife shall be deemed to be rape under Section 376-A of the I.P.C.

Fourth, as a corollary to the above distinction, neither husband nor wife may remarry and any extramarital relationship with a different sex will be considered a matrimonial offense.

The second marriage will be held as void and the spouse will be guilty of bigamy, punishable under section 17 of the Act along with sections 494 and 495 of the IPC.

Additionally, a child born during a period of judicial separation will be legitimate unless, of course, the husband can prove that he did not have access to his wife at the time the child was conceived.

If one party dies, the other party inherits the property because the marriage exists, and the parties are spouses. The wife will also be entitled to maintenance during the separation period.

Finally, if, after the judgment of judicial separation, one party commits a matrimonial offense, after the expiration of the one year, he may be deprived of the right to apply for divorce because he took advantage of his mistake.

CONCLUSION

The concepts of judicial separation and divorce intricately touch upon the evolving nature of family law and the delicate balance it maintains between traditional and modern viewpoints. While judicial separation provides a cooling period for reconciliation, divorce is the remedy when all efforts for reconciliation have failed. Ultimately both the concepts work in accordance with the law to ensure equal treatment while acknowledging the extraordinarily complex nature of matrimonial relations.