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Six things you should not miss before filing your petition for judicial separation

August 04, 2021
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This article is written by K Vidya Sagar, pursuing an Introductory Course to Legal Writing from Lawsikho.

Introduction

Judicial separation is the process of separating a married couple without having to divorce them. It is commonly known as divorce from bed and board. It is generally granted by the court on a petition by any one of the partners on certain grounds provided under the law. It should be noted that judicial separation and divorce are not the same thing and cannot be used interchangeably. The effect of an order of judicial separation is a temporary suspension of the marriage and is provided under the Hindu Marriage Act, 1955. Judicial separation is the means by which the court gives time to marriage to heal and for the couples to reconcile the differences between them.

The object of this article is to help couples of troubled marriages to know the basics of judicial separation before seeking an order for the same from a court of appropriate jurisdiction. The law has however provided several means of resolving disputes if possible and dissolving marriages if the marriage is irretrievably broken or the spouse/s has broken the matrimonial obligations/laws as the case may be. There might be several things that might be running through your mind when you come to think of your marriage as a failed one but what can you do about it in terms of judicial separation.

 

1. What does the law say about adultery being a ground for judicial separation?

The stand of various laws on adultery

Section 13(1) of the Hindu Marriage Act, 1955 defines adultery as an act of sexual intercourse of a spouse with a person outside of their marriage. According to Section 10 of the Act, adultery is a valid ground for judicial separation. If the spouse of a person has indulged in sexual intercourse with a different individual, then it certainly is recognized by the law although adequate evidence has to be provided to prove the same.

The Muslim Laws do not have express provisions for judicial separations. However, it has been iterated in several cases by the courts time and again that adultery is a valid ground for judicial separation.

People from other faiths who are not termed as Hindus can take recourse for judicial separation under this Act. The said Act makes provisions for judicial separation for adultery under Section 22. The Section bars divorce mensa et thoro nevertheless makes a provision for a decree of judicial separation on the grounds of adultery.

It should now be clear that regardless of your faith you are entitled to judicial separation on the basis of adultery but are you aware of the special provisions on which a woman can claim judicial separation under the Hindu Marriage Act, 1955?

2. Remedial mechanisms provided by law for a troubled marriage

Having a look at Section 13(1)

1. Separation by agreement

A separation by agreement is a consensual separation by the parties to a marriage to live independently of each other when they do not have grounds for judicial separation or divorce or they want to resolve the matter quietly without the intervention of the court. Such an agreement might be entered into by the parties to avoid being accused of desertion. This agreement may also include matters relating to maintenance, custody of children, and the like. This however need not be abided by the court when any matter is brought before it including restitution of conjugal rights.

2. Judicial separation

Judicial separation is an order from the court that can be obtained by either individual if they are eligible on specific grounds of Section 13(1) of the Hindu Marriage Act,1956. This is a process of formally separating the couple from cohabitation and the performance of marital obligations. The grounds on which such an order can be obtained are as follows: 

  1.  Adultery,
  2.  Cruelty,
  3.  Desertion,
  4. Insanity,
  5. Virulent and incurable leprosy,
  6. A contagious venereal disease, an
  7. Renunciation of the material world.

This can be obtained if there is hope for the marriage to continue and the disputes between the couples can be resolved. This is an action that will give time to the partners from each other and prevent an action as harsh as divorce. An order of judicial separation can only be rescinded by the court itself and not simply by cohabitation. It should be kept in mind that Section 18(2), Hindu Adoptions and Maintenance Act, 1956, provides the opportunity of having a separate residence and claiming maintenance from the husband and this should not be confused with judicial separation.

3. Divorce

Divorce is the most extreme step that can be taken in the case of a failed marriage. It puts the marriage to an end and relieves the couple of the contract they have entered into. The grounds for judicial separation and divorce are the same under Section 13(1) and additional grounds for women are provided under Section 13(2).

Additional grounds provided under Section 13(2)

Additional grounds have been provided under Section 13(2) under the Hindu Marriage Act, 1956 solely for the wife to claim judicial separation –

Bigamy

If the husband had remarried while the first wife was still alive and their marriage was solemnized before the commencement of the Act then the wife can use this as a ground for judicial separation.

Rape, sodomy, and bestiality 

If the husband is guilty of the above offences, then the wife can seek judicial separation under this ground.

Repudiation of marriage  

If a girl is married before the age of 15 then she can renounce such marriage after the completion of 15 years of age and before completion of 18.

Non-resumption of cohabitation 

The wife can seek judicial separation if cohabitation between the parties has not resumed following a court order for maintenance and a period of one year has lapsed from the time such an order is made.

3. Expenses of the litigation process and the time period it is expected to prolong for

  1. Your legal expenses for a judicial separation might vary on a wide spectrum varying from Rs 5000 and up to Rs 50,000 per hearing. This depends on a number of factors like the experience of the lawyer hired, the complexity of the case, the consent of the defendant, and even the jurisdiction of the court in which the case arises.
  2. The expenses of the lawyer may vary from one practitioner to the other and you might be charged per case, per hearing, or even by the hour. If the complexity of the case is mediocre and the gains are not very high it is pragmatic to keep the legal expenses to a minimum by not going for those charges exorbitantly. The legal fee also extends to the drafting of the case by the lawyer, consultation fee, and also the charges that arise for an out-of-court settlement mediated by your lawyer. Keeping all these in mind it is plausible to think one might be in for quite an expensive ride. However, as long as the desired results are delivered this should not be an issue as the one who can get the decree in his/her favor has a lot to gain.

4. Maintenance 

Sections 24 and 25 of the Hindu Marriage Act,1956 talk about the maintenance that is to be provided to the wife by the husband or vice-versa. The former talks about temporary maintenance and the latter about permanent alimony. 

Section 24 (temporary maintenance)

If it appears to the court that any of the spouses cannot maintain themselves independently, then the respondent shall be directed to pay alimony to the petitioner on an application to the court for the same. It is also said that such an application for temporary maintenance shall be disposed of within 60 days of application. The maintenance was construed in a very wide sense in the case of Rani Seth v. Sunil Seth, which said that it cannot be taken to mean bare subsistence. 

Section 25 (permanent maintenance)

Maintenance under this Section of the Hindu Marriage Act is paid when a divorce is claimed by the applicant as judicial separations are only temporary and order for one applies for a period of one year only.

5. Jurisdiction

A petition for judicial separation can be filed in the district court within the jurisdiction of the person where the marriage was solemnized, the place where the parties to the marriage cohabited lastly and where the respondent resides at the time of filing. At the time of filing such petition all the necessary elements given in Order VII, Rule 1 of the Civil Procedure Code, 1973 should be given, such as – 

6. Finding a suitable lawyer 

Finding a lawyer who will fit your needs is very crucial to achieve the result as the lawyer’s experience on the specific issue plays a great role apart from other factors like his expertise on the matter. Choosing a lawyer who has a reputable name among the masses is very beneficial in comparison to those who solicit their services, as reputation is only achieved by producing desired results, and marketing by word of mouth is more reliable than any other means. If a lawyer neither has knowledge nor the technical know-how on the subject then the case is very likely to be dismissed or worse, leads to an expensive legal process that might not be ruled in favor of the applicant. 

Conclusion

Therefore, if you think your marriage is in a troubled position and judicial separation might give you time to fix what according to you had gone wrong, then don’t forget to follow through with these six points which can be crucial to your case. To summarise- 

  1. Know the grounds provided in law for judicial separation.
  2.  What are the choices you have to remedy your situation?
  3. The expenses you might incur in the process.
  4. The situation in which you can claim maintenance.
  5. The court where your application can be filed.
  6. Getting the right man to do the job.

It is, therefore, recommended that you should always equip yourself with all the tools you can before you approach the court of law to have a nice chance at making the best of your case and getting a remedy that would favor your cause rather than going to the court prematurely and wasting your time and resources at a cause that helped nothing.

References


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