This article is written by Khushi Sharma pursuing B.A. LLB from IIMT, IP University (Trainee Associate, Blog iPleaders). This article deals with the analysis of judicial separation under Hindu marriage laws.
It has been published by Rachit Garg.
The Hindu Marriage Act, 1955 (“HMA”) was made to codify and amend the laws of marriage among Hindus. The motive of the Act was to provide uniformity of the laws among the Hindus regarding marriage and other subsequent laws. Coming to Section 10 of the Hindu Marriage Act, talks about judicial separation among the partners and about the alternate reliefs available to either of them.
Section 10 of Hindu Marriage Act, 1955
Section 10(1) of HMA explains that if a marriage is solemnised under Hindu laws and if the party to marriage wants to seek a judicial separation they can do so by filing a petition of the same in the court. The party can present the application of separation by mentioning the grounds which are herein mentioned under Section 13(1) of the HMA and the wife can further also take support of the grounds of separation from Section13(2) which we are going to study ahead in this article.
Section 10(2) of HMA additionally mentions that if a decree under Section 10(1) is passed, it is no longer obligatory for the parties to reside together and the court by the application of petition by either of the parties and being satisfied by the application their decree may be rescind.
Judicial separation in a generic sense means that the couple is separated from each other by a court order through an application instituted by them but is still married in the eyes of law. The court does not grant it for any reason except the grounds mentioned under the grounds of divorce [Section 13(1)].
Who can file a petition under Section 10 of Hindu Marriage Act
- Any couple who has solemnised their marriage under the customary Hindu laws.
- Any spouse aggrieved can file a petition in a District Court under Section 10 for judicial separation.
- Unlike divorce, it is not required for the parties to live together for a period of one year. Judicial separation can be sought at any time during the marriage.
Grounds for judicial separation
The grounds for separation/divorce are mentioned under Section 13 of the HMA. The following are the grounds for separation which can be sought by any aggrieved party and can be brought in front of the court for suitable action.
- Adultery – Any party to a marriage can seek judicial separation on the ground that their significant other has or had sexual intercourse with a person other than them. The burden of proof lies on the party seeking separation. [Section 13(1)(i)]
This can be inferred from the case of Subarama Reddiar v. Sakaswathi Ammal; (1966) 79 LW 382 (Mad) (DB), that if the spouse successfully proves the presence of an adulterous relationship of their partner then judicial separation to the party can be granted by the Court.
- Cruelty – Any party causing mental or physical torture on the other resulting in harming one’s physical or mental health can be considered as a valid ground for judicial separation. [Section 13(1)(ia)]
It was held in the case of Manisha Tyagi v. Deepak Kumar; (10th Feb 2010), that the respondent (the wife) was accused of cruelty by the husband and to which divorce was granted by the District Court and the High Court. Challenging the same before the Supreme Court, the Court mentions that there was a lack of evidence against the respondent hence providing the parties judicial separation to contemplate their status of the marriage in the said time.
- Conversion – if any party to marriage converts their religion from Hindu to any other religion, then in such cases the aggrieved party can file a petition for judicial separation in the court seeking relief. [Section 13(1)(Ii)]
It was explained in the case of Madanan Seetha Ramalu v. Madanan Vimla, that the wife had converted into Christianity to which the court granted judicial separation and then divorce on the application by the husband.
- Unsoundness of mind – If any party to a marriage is suffering from unsoundness of mind or such intermittent ineffectiveness of the mind that it makes it impossible for the other party to reside together, then in such case the aggrieved party may seek judicial separation [Section 13(1)(iii)]. Further, this Section explains two kinds of disorder – Section 13(1)(iii -a) mental disorder includes mental illness which is either arrested or incomplete development of mind and on the other hand Section 13(1)(iii-b) includes psychopathic illness which includes disorders like schizophrenia that involves a persistent or a disability of the mind making it difficult for the other person to live under a common roof.
The case of Anima Roy v. Prabadh Mohan Ray; (AIR 1969) explained that if the unsoundness of mind is not traced around the time of marriage then the court cannot grant judicial separation to the parties.
- Leprosy – Any party can seek judicial separation from the other party on the grounds of a type of leprosy that is incurable and very dangerous for the health of any person. Here leprosy is a chronic skin condition that is contagious and causes discolouration and lumps on the skin. [Section 13(1)(iv)]
It was further explained by the case of M. Jasmine Devapriya v. A. Stephen Dhanraj; 2017, that if the aggrieved party can prove beyond reasonable doubt that it is not possible to cohabit together due to communicable and incurable disease then judicial separation can be granted.
- Venereal disease – if any party to a marriage has an incurable or a communicable disease about which the other party did not know at the time of marriage then the aggrieved party can seek judicial separation for the same ground.[Section 13(1)(v)]
Grounds for judicial separation exclusively available to the wife
Following are the grounds that are exclusively available to the wife for seeking judicial separation.
- Bigamy – If it has come to the belief of the wife that her husband has married another woman in the existence of their married life then such aggrieved wife can file a petition under judicial separation proving to the court about the existence of another woman. [Section 13(2)(i)]
- Other crimes- If the wife is to believe that certain charges like rape, sodomy and bestiality are committed by her husband then in such cases the petition for judicial separation can be filed in the court. [Section 13(2)(ii)]
- Revoke marriage due to age- If the girl is made to marry any person before attaining the age of 15, then she can repudiate the marriage before attaining the age of 18 by filing for judicial separation. [Section 13 (2)(iv)].
The status of parties is not fully dissolved during the course of separation, though the parties would not have any mutual rights; they are still legally married under the Hindu law, Narasimha Reddy v. M Boosamma; (AIR 1976 AP 77). The court after passing the decree of judicial separation gives a gap of one year to the parties to which they can contemplate their status of relationship and decide on whether to or not reconcile, and so if the parties do not wish to rehabilitate together then the decree of judicial separation can be moved for divorce. Therefore it shows that judicial separation does not mean a complete cessation of rights but on a temporary basis. During the separation, the party is in no sense moved out of the line from the inheritance of property as they are lawfully still spouses in the eyes of law which were held in the case of Krishna Bhattacharjee v. Sarathi Choudhary, (2016) 2 SCC 705.
If the court is of the view that the wife is unable to sustain herself during the time of judicial separation then maintenance to fulfil her basic needs shall be given to her which was also held in the case of Rohini Kumari v. Narendra Singh; (1972) 1 SCC 1 and Sohan Lal v. Kamlesh; (AIR 1984 P H 332).
The case of Gomathi v. Kumaragurrupaan, (AIR 1987 Mad 259) held that after passing the decree of judicial separation if the parties do not resume to cohabit together then the parties can move to the court for divorce and the date of one year of judicial separation can be calculated from the date of announcement of such decree.
Difference between judicial separation and divorce
After analysing the concept of separation we can observe that both the terms “judicial separation” and “divorce” are similar on some level but here the question arises what differences are present which makes these two terms used in different situations. Following are some differences between judicial separation and divorce –
|Meaning||Judicial separation is a gap of one year that is granted to the parties by the court after the petition is filed by either of them on certain grounds.||Divorce is the full separation of parties which takes after judicial separation ceasing every right arising out of a marriage.|
|Section||Mentioned under Section 10 of the HMA||Mentioned under SEction 13 of the HMA|
|Rights||Judicial separation is partial disablement of mutual rights but not all the rights. The couple is still lawfully married.||Divorce ceases all the rights arising out of a marriage.|
|Time||For judicial separation, there is no such time mentioned for filing the application under the same.||Divorce can only be filed after a gap of one year.|
|Opportunity to reconcile||Yes, the couple can reconcile by ending the separation and starting living together.||No, the party loses their privilege.|
After analysing the whole concept of judicial separation we can infer that it gives the opportunity to the parties to give their marriage a second chance and helps them to contemplate their status of the relationship. I think the gap of one year is a suitable time period to make the couple realise their need for reconciliation. The cessation of mutual rights does not signify an overall end of the marriage. The couple is still lawfully married during the course of judicial separation hence not ending their major rights of inheritance, maintenance etc. Furthermore, maintenance can be awarded to the party who is unable to sustain and is not able to fulfil their basic needs. Judicial separation can be seen as an imperative approach by the courts to avoid marriages ending up in divorce.
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