Either party to a marriage, Whether solemnized before or after the commncement of this Act, may present a petition praying for a decree for judicial separation on any of the grounds specified in sub- section (1) of Section 13, and in the case of wife also on any of the grounds specified in sub- section (2)thereof, as grounds on which a petition for divorce might have been presented.
Where a decree for judicial separation has been passed, it shall no longer be obligatory for the petitioner to cohabit with the respondent, but the court may, on the application by petition of either party and on being satisfied of the truth of the statements made in such petition, rescind the decree if it considers it just and reasonable to do so.
Judicial Separation under Hindu Law is a legal procedure designed to give troubled couples some time to reflect on their marriage. It allows both the husband and wife to reconsider their relationship while living apart. This legal process provides them with the freedom and space to think about their future and represents their final option for a legal separation.
What is Judicial Separation in Hindu Law?
In Hindu Law, Judicial Separation is a legal remedy that allows a married couple to live apart without officially dissolving their marriage. It is distinct from divorce and serves as a potential precursor to it. Judicial separation is granted by the court based on specific grounds, such as adultery, cruelty, desertion or other valid reasons recognised by the law.
During a judicial separation in Hindu Law, the spouses retain their marital status, but their legal duties and obligations toward each other are suspended. This arrangement provides an opportunity for the couple to assess their relationship, possibly reconcile or eventually move towards divorce. It offers a structured and legally recognised means for couples facing significant marital challenges to obtain a formal separation while remaining legally married.
Section 10 of Hindu Marriage Act and Judicial Separation in India
Petition for Judicial Separation: Either party in a Hindu marriage, regardless of whether it was solemnised before or after the enactment of the Act, can file a petition seeking a decree for judicial separation. This petition can be based on the grounds specified in Section 13(1) for both parties and on the grounds mentioned in Section 13(2) in the case of a wife. These grounds are the same as those on which a divorce petition could have been filed.
Effect of Judicial Separation: Once a decree for judicial separation is granted, it is no longer mandatory for the petitioner and the respondent to live together as a married couple. They can live separately. However, the court has the authority to rescind the decree upon the application of either party if it finds that doing so is just and reasonable.
This legal provision provides a structured process for obtaining judicial separation in Hindu marriages and allows for flexibility if circumstances change
Filing Petition for Judicial Separation in India
If one spouse has been harmed by the other, they can initiate a Judicial Separation under Hindu Law petition in a District Court under Section 10 of the Hindu Marriage Act, 1955. To do so, the following conditions
- The marriage between the husband and wife must have been legally solemnised under the Hindu Marriage Act.
- The respondent, the spouse against whom the petition is filed, should reside within the jurisdiction of the court where the petitioner submits the petition.
- The husband and wife must have lived together for a specific period before the petition is filed.
Every petition should, in accordance with Order VII Rule 1 of the Civil Procedure Code, 1908 contain the following information:
- The date and place of the marriage.
- An affidavit confirming that the person is a Hindu.
- Names, status and addresses of both parties.
- Names, dates of birth and genders of any children.
- Details of any prior legal actions filed before seeking a judicial separation or divorce.
Grounds of Judicial Separation in India
- Adultery-Extra marital sex is a ground of divorce under Hindu Law. A wife can also apply for a divorce if her husband has committed rape, sodomy or bestiality. Ordinarily, adultery is, under the Act, is a ground for judicial separation available to both spouses.
Under Section 10 of the Indian Divorce Act, a wife may present a petition for the dissolution of her marriage on the ground that “the husband has been guilty of rape, sodomy or bestiality”. A similar provision is also given under Section 13(2)(ii) of the Hindu Marriage Act with improvised to make it clear that such lapses must have taken place “since the solemnisation of marriage” and not before.
Case Law –1. In the case of Hirachand Srinivas Managaonkar v. Sunanda, Hon’ble Supreme observed that in case where the adulterous nature of a spouse is proven the court may decree judicial separation which may further be moved towards a decree of divorce. 2. Dr. H.T. Vira Reddi v. Kistamma (1968), the Court granted judicial separation under Hindu Law to the husband because the wife had engaged in sexual intercourse with someone else. The Court emphasised that even a single act of infidelity by one spouse is sufficient grounds for obtaining legal separation.
Cruelty-The term ‘cruelty’ in the context of marriage doesn’t have the same meaning as in everyday language. ‘Legal cruelty’ has a different definition. In the case of G.V.N. Kaeswara Rao v. G. Jalli (2002), the Supreme Court attempted to define ‘cruelty’ within the context of marriage.
The Court stated that an act is considered cruel if its intent is to cause suffering to the other spouse. It doesn’t necessarily have to create fear in the spouse that it’s dangerous to live with the other. The intent of the person causing the cruelty doesn’t matter and it doesn’t have to be committed by the respondent alone
Cruelty is a ground for divorce under the Hindu Marriage Act (as amended in 1976) and the Dissolution of Muslim Marriages Act, 1939. But under the Hindu law the concept, of cruelty is left undefined, whereas in Muslim law cruelty is specified to be in a form of habitual assault, notorious lifestyle, association with ill-reputed women, immoral life, interference with personal property and obstruction in religious practices.
Case Law – 1. In Trimbak Narayan Bhagwat v. Kumudini Trimbak Bhagwat, the Bombay High Court held that the aggrieved wife is entitled to get a decree of judicial separation and defence of insanity is no good defence.
Desertion-Desertion without a reasonable cause lasting for two years is a ground for divorce under the Hindu Marriage Act. In the past desertion (of two years’ duration) constituted a ground for judicial separation. However, after the 1976 amendment, the grounds for judicial separation and divorce have been merged under that Act. The civil marriage law and the Hindu law are, thus, now identical in respect of desertion as a ground for divorce but under the Indian Divorce Act, desertion lasting for two years without excuse is ground only for judicial separation and not divorce.
Case Law – 1. In Rohini Kumari v. Narendra Singh, Hon’ble Supreme Court held that in case where a spouse (here, the husband) deserts his partner, the aggrieved party may file a suit of judicial separation if she does not want to live with him. It was also held in this case that in case of judicial separation the wife becomes entitled to seek maintenance from her husband under both the Hindu Marriage Act and the Hindu Adoption and Maintenance Act, 1956.
Conversion- If one spouse converts to another religion, ceasing to be a Hindu, the other party can seek judicial separation under Hindu Law. In the case of Vilayat Raj v. Smt. Sunila (1983), where the husband converted to Islam and sought to dissolve the marriage, the court established that a conversion alone does not automatically end the marriage but serves as a ground for its dissolution. However, the court also noted that a party cannot benefit from a situation they created to the detriment of the other spouse.
Venereal Communicable Diseases- Under the Hindu Marriage Act, a spouse can ask for a divorce when his/her partner is suffering from a contagious venereal disease which could spread due to mutual cohabitation.If one spouse suffers from a communicable and incurable venereal disease such as HIV/AIDS, HPV or syphilis, the other spouse can seek judicial separation under Hindu Law
Case Law – 1. In the case of Ratna Manjari Das v. Dr. Bhaskar Chandra Das, the Orissa High Court ruled that in case where a spouse (here, the husband) approaches a court for dissolution of marriage by way of judicial separation and then divorce, on ground of communicable venereal disease, it is important that the disease should be contagious so as to grant a decree of judicial separation.
Unsound Mind or Mental Disorder- If one spouse is of unsound mind or suffers from an incurable mental illness or disorder that makes it difficult for the other spouse to live with them, an appeal for judicial separation in India can be filed. In the case of Anima Roy v. Proboth Mohan Roy (1968), the husband sought nullity of the marriage, claiming his wife had schizophrenia at the time of their marriage. However, his petition was not allowed by the court due to an unwarranted delay of three years in filing the petition from the date he claimed to have learned about his wife’s condition. Additionally, the evidence presented was not satisfactory.
Renunciation-In Hindu Law sanyas i.e. renunciation of material life for spiritual and religious life, is a ground for divorce. This is exclusively for the Hindus and has no place either under the Special Marriage Act or any other personal law operating in India.
In Madhukar Bhaskar v. Saral, the Bombay High Court held that renunciation of the world is a matrimonial offence and therefore the aggrieved spouse can approach for a decree of Judicial Separation
It is to be noted here that in the case where the ground of divorce is Conversion or Absence of spouse for more than 7 years the court cannot pass a decree for judicial separation. Section 13A, clearly states that in a suit for divorce the court may pass a decree of judicial separation first. But in cases of divorce on the grounds of Conversion or not being heard of for more than 7 years the operation of Section 13A has expressly been excluded because of which in a proceeding for divorce, where the ground is any one of the two grounds mentioned above, the Court has no discretion to grant judicial separation instead of a decree for divorce.
In Robasa Khanum v Khodadad Bomanji, it was held that unless it is proven that by the change of religion the spouse has refrained from performing the conjugal rights, the marriage cannot be dissolved an until then an order for judicial separation cannot be passed.
Grounds of Judicial Separation Available to the Wife
- Bigamy- Bigamy refers to marrying another person when one is already legally married to someone else. Prior to the commencement of the Act, if a husband remarried another woman while his wife was still alive, the wife could file a petition for judicial separation under Hindu Law. In the case of Harmohan Senapati v. Smt. Kamala Kumari (1978), the wife filed a suit for judicial separation because the husband married another woman and lived with her without dissolving their earlier marriage.
- Guilty of Rape, Sodomy or Bestiality-If the husband, after marriage, is found guilty of rape, sodomy or bestiality, the wife has the right to file a petition for judicial separation on these grounds. For example, if ‘A’ and ‘B’ are husband and wife and ‘A’ is convicted of rape of another woman, ‘B’ can file a petition for judicial separation under Hindu Law.
