judicial separation

Judicial separation is an instrument devised under law to afford some time for introspection to both the parties to a troubled marriage. Law allows an opportunity to both the husband and the wife to think about the continuance of their relationship while at the same time directing them to live separate, thus allowing them the much needed space and independence to choose their path.

Judicial Separation and Divorce in India as per Hindu Marriage Act

Judicial separation is a sort of a last resort before the actual legal break up of marriage i.e. divorce. The reason for the presence of such a provision under Hindu Marriage Act is the anxiety of the legislature that the tensions and wear and tear of every day life and the strain of living together do not result in abrupt break – up of a marital relationship. There is no effect of a decree for judicial separation on the subsistence and continuance of the legal relationship of marriage as such between the parties. The effect however is on their co-habitation. Once a decree for judicial separation is passed, a husband or a wife, whosoever has approached the court, is under no obligation to live with his / her spouse .

The provision for judicial separation is contained in section 10 of the Hindu Marriage Act, 1955. The section reads as under:

A decree for judicial separation can be sought on all those ground on which decree for dissolution of marriage, i.e. divorce can be sought.

Hence, judicial separation can be had on any of the following grounds:

Adultery

Cruelty

Desertion

Apostacy (Conversion of religion)

Insanity

Virulent and incurable form of leprosy

Venereal disease in a communicable form

Renunciation of world by entering any religious order

Has not been heard of as being alive for seven years

If the person applying for judicial separation is the wife, then the following grounds are also available to her:

Remarriage or earlier marriage of the husband but solemnised before the commencement of Hindu Marriage Act, 1955, provided the other wife is alive at the time of presentation of petition for judicial separation by the petitioner wife.

Rape, sodomy or bestiality by the husband committed after the solemnization of his marriage with the petitioner.

Non-resumption of co-habitation between the parties till at least one year after an award of maintenance was made by any court against the husband and in favour of the petitioner wife.

Solemnization of the petitioner wife’s marriage with the respondent husband before she had attained the age of 15 years provided she had repudiated the marriage on attaining the age of 15 years but before attaining the age of 18 years.

It is on all the above grounds that judicial separation can be sought. The first 9 grounds are available to both the husband and the wife but the last four grounds are available only to the wife. It is to be noted that it is on these grounds that divorce is also to be granted. It has been held that unless a case for divorce is made out, the question of granting judicial separation does not arise. Therefore, the Courts while dealing with the applications for judicial separation shall bear in mind the specific grounds raised for grant of relief claimed and insist on strict proof to establish those grounds and shall not grant some relief or the other as a matter of course. Thus on a petition for divorce, the Court has discretion in respect of the grounds for divorce other than those mentioned in section 13 (1A) and also some other grounds to grant restricted relief of judicial separation instead of divorce straightway

if it is just having regard to the facts and circumstances.

Another question that arises is of decree of maintenance vis-à-vis decree for judicial separation. Where a decree for judicial separation was obtained by the husband against her wife who had deserted him, the wife not being of unchaste character nor her conduct being flagrantly vicious, the order of alimony made in favour of the wife was not interfered with by the Court.

ILR (1964) 2 Punj 732.

 The Punjab and Haryana High Court has also held that a reading of sec 24 and 26 (maintenance) does not show that if a petition under section 9, 10 12 or 13 is disposed of, the jurisdiction of the court to award maintenance pendent lite by an order to be passed is taken away.

AIR 1981 Punj 305 ; 1981 Hindu LR 345

The above decisions go on to show that even where a decree for judicial separation is passed in favour of the husband, maintenance may still be awarded to a wife and judicial separation is no defence to a claim for maintenance under Hindu Marriage Act.

Though section 10 of the Hindu Marriage Act does not provide any time as to how long judicial separation can last. But section 13 of the Act provides that if there is no resumption of co-habitation between the parties one year after the decree for judicial separation is passed, the parties can get a decree for divorce on this ground itself. But divorce on this ground will be given only when one year has expired after the passing of the decree for judicial separation and not earlier. The reason for this is that one year is a long period and it provides sufficient time to the parties for reconciliation or to arrive at a decision. If the parties fail to overcome their differences within this period, then there is no fun in allowing the legality of the marriage to just linger on when in substance the relationship of marriage has long expired.

It is to be noted, however, that if the parties do agree to resume co-habitation any time after the passing of the decree for judicial separation, they can get the decree rescinded by applying to the court. The Act does not refer to any specific grounds on which a decree for judicial separation can be annulled or rescinded. Section 10(2) however, empowers the Court to rescind the decree for judicial separation if it considers it just and reasonable to do so. However Courts have repeatedly warned that this power of rescission has to be exercised with great circumspection and not in a hurry and only after satisfying themselves that it would be just and reasonable to allow such rescission.

For any help feel free to cal at 9456777600.