Hindu law
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This article is written by Chandan Kumar Pradhan from KIIT school of law, Odisha. This article talks about the judicial separation of a husband and a wife under the Hindu Marriage Act, 1955.

Introduction

The concept of marriage is to establish a relationship between the husband and wife. According to old Hindu Laws, marriage is the formal ceremony and is a religious tie that can not be broken. According to Smritikars, even death can not break the relationship between a husband and a wife. The object of marriage is to permit a man and a woman to complete the religious duties of the life made by God. According to earlier scriptures, a man was imperfect without a woman and a woman(ardhangini) is also incomplete without her husband.

In modern laws, if a person does not want to stay in married life and does not want to extend any longer then he/she can request relief under the Hindu Marriage Act, 1955 by way of the Judicial Separation.

The concept of marriage in Hindu Law

Marriage is one of the most essential Sanskaras(values) of nature. The religious duties of marriage have three features in the following:

  • There is a permanent connection, which can not be detached once tied up.
  • There is an endless connection, which is valid not only in this life but also in lives to come.
  • There is a religious connection, in which the performance of religious ceremonies is required.

Hindu Marriage was designed to be a religious ceremony and conducted formally to give specific blessings; the consent of the parties didn’t hold any significant place in old Hindu Law.

Under Section 12 of the Hindu Marriage Act, it is  defined that a marriage is voidable if the following are satisfied:

  • Either party is impotent or unfit for the procreation of children.
  • The condition specified in clause (ii) of Section 5:
  1. Either party gives consent in the form of an unsound mind at the time of marriage.
  2. Capable of giving a valid consent as such unfit for the procreation of the child while he/she has been suffering from a mental disorder.
  3. Either party is subjected to the habitual attack of mental disorder.
  • If the marriage happened without the consent of the bride or her parent or guardian pressure.
  • The bride was pregnant by another man other than the bridegroom at the time of the marriage.

Section 5 of the Hindu Marriage Act,1955, defines that a marriage is valid if the following conditions are satisfied:

  • Either party shouldn’t have any other living spouse at the time of the marriage.
  • Neither party is incapable of giving valid consent. The consent would be valid only when the parties are of sound mind at the time of giving consent.
  • Neither party has been subject to the habitual attack of mental disorder.
  • The age of both spouses should be legal according to the Marriage Laws, 1976(bridegroom should be 21 years old and bride should be 18 years old).
  • Either party should not fall within the degree of prohibited relationship which is provided under Section 3(g) of the Hindu Marriage Act,1955.
  • There should not be the Sapinda relationship between the spouses.

Section 11 of the Hindu Marriage Act,1995 states that a marriage is void if the clause (i), (vi), (v) of Section 5 is not satisfied. These are clauses in the following:

  • Either party shouldn’t have any other living spouse at the time of the marriage.
  • Either party should not fall within the degree of prohibited relationship which is provided under Section 3(g) of the Hindu Marriage Act,1955.
  • There should not be the Sapinda relationship between the spouses.

The advanced concept of marriage is contractual in nature. It takes the ethics of liberty and equality(free choice and Individuals). Today, it is an established opinion of the people that marriage is to be operative and must be an agreement by choice entered into by both parties.

Forms of Marriage in old Hindu Law

The Hindu marriage is based upon the elimination of the dominion of the father over his daughter. The relationship between a husband and wife is quite beautiful and it is the religious duties of Hindu law. The religious ceremony is compulsory for all kinds of marriage.

There were eight forms of marriage. Out of those, four are approved and the other four are unapproved. They are in the following:

Approved marriage forms

  • Brahma- The gift of a daughter from her father, after decorating her with jewellery and ornaments to a man, which is learned in the Vedas. The father of the girl himself invites the bridegroom, is called the “Brahma marriage”.
  • DaivaThe girl is given to a person, who operates as a priest. And this form of marriage only happened in the case of brahmins only.
  • ArshaThis marriage symbolizes the rural stage of the Hindu society where cattle were considered the crucial part. In this, the presence of a cow and a bull or two cows and two bulls make the price of the bride.
  • Prajapatya- In this marriage, the gift is made with a condition that “May both of you perform together, your civil and religious duties”.

Unapproved marriage forms

  • Asura- The bride was given to the husband in payment of consideration called “KanyaSulkam”.
  • Gandharva- This marriage happened by only consent from the bride and bridegroom. This form of marriage was practiced by the tribe those who lived on the slope of the Himalayas.
  • Rakshasa- This type of marriage was only allowed to the Kshatriyas or military classes. Here, forcible abduction of the bride from her parent’s house is natural.
  • Paisacha- This is the worst form of marriage in the Hindu culture. This form of marriage is a punishable offense under IPC as rape. Because in this type of marriage the husband secretly embraces the bride or disorder in her intellect, that is a sinful marriage and this type of marriage is called Paisacha which is in the last and worst position of the forms of marriage.
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Forms of Marriage in modern Hindu Law

The Hindu Marriage Act, 1955 does not give any particular provisions for any form of marriage.

Looking at from another side, in Hindu society, there are commonly two forms of marriages as given below:

  • Arranged marriage
  • Love marriage

Most of the Hindu marriages are still arranged marriages. An arranged marriage can be done either in the form of Brahma marriage or in the form of Asura marriage. Between the Sudras, the Asura form of marriage is a very common way of marriage, but in high standard Hindus, the Brahma marriage is common and the Gandharva marriage is becoming very popular among the young generation.

Marriage Ceremonies

Marriage between Hindus, being a religious and an unbreakable tie, execution of specific ceremonies is still compulsory for a valid marriage. There are three significant areas where the specific ceremonies are to be acted. They are:

  • Sagai – This is a formal promise from the father to give the girl in marriage.
  • Kanyadan –  This is the actual giving away of the girl in marriage by her father.
  • Saptapadi – This existed in performing a ceremony of attractive “saat phere” around the sacred fire by the bride and groom. By this performance of Saptapadi, it is concluded that the marriage ceremony is solemnized. This makes the marriage completely unchangeable.

Under Section 7 of the Hindu Marriage Act, 1955 it is defined as the marriage which happens, should be formal and with the consent of the parties. Saptapadi is an essential part of the ceremony of marriage.

Hindu Laws also allow the inter-caste marriages between Hindu and a non- Hindu but in some special provisions under Special Marriage Act,1954.

The concept of Judicial Separation

Judicial Separation is a medium under the law to give some time for self-analysis to both the parties of a disturbed married life. Law gives a chance to both the husband and wife to rethink about the extension of their relationship while at the same time guiding them to live separately. By doing this, the law allows them the free space and independence to think about their future path and it is the last option available to both the spouses for the legal breakup of the marriage.

Section 10 of the Hindu Marriage Act, 1955 provides the Judicial Separation for both the spouse, those who are married under the Hindu Marriage Act, 1955. They can claim the relief of Judicial Separation by filing a petition. Once the order is passed, they are not bound to have cohabitation.

Filing petition for Judicial Separation

Any spouse who is hurt by another spouse, can file a petition for Judicial Separation in a District Court under Section 10 of the Hindu Marriage Act, 1955 and the following should be satisfied:

  • The marriage between the husband and wife should be celebrated properly under Hindu marriage Act.
  • The respondent should be settled in the jurisdiction of the court where the petitioner filed the petition.
  • The husband and wife lived together for a particular period of time before the filing of petition.

Every petition should according to Order VII Rule 1 of the Civil Procedure Code, 1973 must contain:

  • The date and place of marriage.
  • The person should be a Hindu, by his/her affidavit.
  • Name, status, address of both the parties
  • Name, DOB and gender of children(if any).
  • Details of litigation filed before filing the decree for judicial separation or divorce.
  • For the judicial separation, the evidence should prove the grounds.

Grounds for Judicial Separation

It is given under Section 10 of the Act; the spouse can file a petition for judicial separation on the basis of the following grounds:

Adultery [Section 13(1)(i)]- It means where any of the spouses voluntarily had sexual intercourse with any other person except his/her spouse. Here, the aggrieved party can claim the relief but that intercourse should be placed after the marriage.

Case- Revathi Vs. Union of India and Ors – In this case, the Court held that Section 497 of IPC is prepared like, a husband can not prosecute the wife for defiling the sanctity of the married tie by the charge of adultery. The law does not permit the husband of the offending wife to prosecute his wife and the wife also has not permitted to prosecute the offending husband for being disloyal to her. Therefore, both the husband and wife have no right to strike each other with the weapon of criminal law.

Cruelty [Section 13(1)(i-a)]- When the spouse treats his/her partner with cruelty or inflicts any mental or physical pain after the marriage. The sufferer can file a petition on the grounds of cruelty.

Case- Shyamsundar Vs. Santadevi – in this case after the marriage, the wife was badly harmed by her husband’s relatives and the husband also stood lazily, taking no steps to protect his wife.

The Court held that the intentional neglect to protect one’s own wife amounts to cruelty on the husband’s part.

Desertion [Section 13(1)(i-b)]- In this section, it is defined that if the spouse left the other spouse for any reason without informing him/her for a period not less than 2 years before filing the petition by another spouse, desertion gives a right to claim relief of judicial separation for the hurt party.

Case- In the case, Guru Bachan Kaur Vs. Preetam Singh, the husband filed a petition for divorce after 7 years of declared desertion and never understood the problems of the wife who was also a working woman. But the wife was willing to live with her husband at her house in the place of her service.

The High Court held that there is nothing like mutual desertion. One party has to be guilty in desertion.

Conversion/Apostasy [Section 13(1)(ii)]- If any spouse gets converted into any other religion other than Hindu, then the other spouse can file for judicial separation.

Case- In Durga Prasad Rao Vs. Sudharshan Swami, it was observed that in every conversion case, formal rejection of religion or operation of the sacrificial ceremony is not essential. Therefore, in the case of conversion, the question of fact arose.

Unsound mind [Section 13(1)(iii)]- If any spouse in a marriage is suffering from any mental disease which is difficult to live for the other spouse with the sufferer. The other spouse can claim relief from judicial separation.

Case- Anima Roy Vs. Prabadh Mohan Ray (AIR 1969) in this case, the respondent was found suffering from an abnormal disease after 2 months of marriage. The doctor who checked the respondent also could not find the particular time of starting the illness. Therefore, it was held that disease was not proved at the time of marriage.

Leprosy [Section 13(1)(iv)]- If any spouse suffering from any disease like leprosy,  which can not be recovered, then the other party can file a petition for judicial separation because he/she can not waste their own time due to the sufferer.

Illustration- ‘A’ a sufferer of an abnormal disease and ‘B’ is the wife of ‘A’. If ‘A’ is suffering from a disease that is incurable and the doctor also can not understand the disease. In this case, ‘B’ can file a petition for judicial separation if she doesn’t want to continue with her husband.

Venereal Disease [Section 13(1)(v)]- If any party to a marriage or a spouse has any type of disease which is incurable and communicable and the spouse does not know about the fact at the time of marriage, then it could be a valid ground for the spouse to file petition for judicial separation.

Illustration- ‘A’ is suffering from an abnormal disease that is spread by communication. The disease which is irrevocable. In this case, ‘B’ the wife of ‘A’ can file a petition for the judicial separation in good faith for their future of the two children.

Renounced the World [Section 13(1)(vi)]- In Hindu law, by renouncing the world means “Sannyasa”. Renunciation from the world conveys that the person has given up the world and leading a holy life. He is considered a civil dead. If a spouse renounces the world to live a holy life, his/her partner can file for judicial separation.

Illustration- If ‘A’ changed his religion and went somewhere, where people also can not find him. ‘B’ the wife of ‘A’ got hurt so much by hearing this news. Therefore she can file a judicial separation.

Civil death/Presumed death [Section 13(1)(vii)]- If a person is not found for 7 or more years and their relatives or any other person have not heard from him/her or it is believed that he/she may be dead. Here, the other spouse can file for judicial separation.

Illustration- ‘A’ and ‘B’ have been husband and wife for 4 years and suddenly the husband disappeared for about 8 years. ‘B’ as his wife she did her best to find her husband in these 8 years but she couldn’t find him. Then, ‘B’ can file the judicial separation for this case. 

Additional grounds for the wife to claim justice

Bigamy [Section 13(2)(i)]- It means if the husband is remarried while he is already married, both of his wives have a right to claim the petition for judicial separation with a condition that, the other wife is also alive at the same time of filing.

Illustration- ‘A’ and ‘B’ are the husband and wife for 5 years and they are happy with their family. Suddenly ‘A’ remarried another woman ‘C’ without the consent of his 1st wife ‘B’ and ‘C’ also did not have any idea that ‘A’ is married earlier. When ‘B’ and ‘C’ got to know about this. ‘B’ can file a petition for judicial separation.

Rape, sodomy or Bestiality [Section 13(2)(ii)]- The wife has a right to file a petition for judicial separation if her husband is guilty of charges like rape, bestiality or sodomy after the marriage.

Illustration- ‘A’ and ‘B’ are the husband and wife from 3 years, if the husband ‘A’ raped any other woman and he is found guilty for that, then, in this case, the wife ‘B’ can file the petition for judicial separation.

Repudiation of marriage/A option of puberty [Section 13(2)(iv)]- If a girl’s marriage happened before attending 15 years of age, then, she has a right to claim judicial separation.

Illustration- There is a girl of 14 years old and she is from a tribal area. There,  child marriage is a very common nature, her parents give her as a present to the bridegroom without her consent. After marriage, this Act does not allow for leaving a relationship without any valid reason. There should be particular grounds on which the spouse can file a case for judicial separation or divorce.

This Act has a great rule to solve the disputes between the spouses and free them from marital ties. In this case, she filed a petition for judicial separation because of her below age.

Difference between Judicial Separation and Divorce

                Judicial Separation

                              Divorce

  • It is provided under Section 10 of the Hindu Marriage Act, 1955.
  • It is provided under Section 13 of the 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 after one or more years of the marriage.
  • It only temporarily suspends the marriage.
  • It is the end of the marriage.
  • An act of adultery is a very big ground, by which anyone files the petition.
  • The husband and wife must be living in an adulterous relation then only a party can file for divorce.

Conclusion

A marriage is considered as a sacred relation in our nation but a person should have an exit from a relationship when he/she is not happy with that relation. People have faith towards the Hindu Marriage Act, 1955 that they can seek relief from the marriage by filing a divorce.

This Act does not allow for leaving a relationship without any valid reason. There should be particular grounds on which the spouse can file a case for judicial separation or divorce.

This Act has a great rule to solve the disputes between the spouses and free them from marital ties.

References

https://indiankanoon.org/doc/590166/

https://www.legalbites.in/concept-forms-marriage/

https://www.lawnn.com/judicial-separation/

http://www.helplinelaw.com/family-law/JUDISI/judicial-separation-in-india.html

https://highcourtchd.gov.in/hclscc/subpages/pdf_files/4.pdf

https://www.vakilno1.com/legalviews/judicial-separation-divorce-india.html


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