Indian Legal System > Civil Laws > Family Laws > The Hindu Marriage Act, 1955 > Judicial Separation
A Hindu marriage is considered a sacrament. It is an irrevocable relationship between husband and wife established through rituals and customs. In case of a failed marriage, they had to continue with the marriage and couldn’t break the marriage. The Hindu Marriage Act, 1955 provide that in case of a failed marriage, the parties do not need to suffer in the marriage and can easily break their matrimonial alliance through Judicial Separation (Section 10) or by a decree of Divorce (section 13). It is upon the parties to choose between the two methods of dissolution.
Section 10 in The Hindu Marriage Act, 1955
Judicial Separation:
(1) Either party to a marriage, whether solemnized before or after the commencement 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 a 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.
(2) 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.
Either party to the marriage, whether solemnized before or after the commencement of the Hindu Marriage Act, 1955 can under Section 10 of the Act file a petition for judicial separation. After a decree is passed in favor of the parties, they are not bound to cohabit with each other. It is a temporary suspension of marital rights between the spouses. The parties remain husband and wife. Thus in judicial separation, the marriage subsists.
Judicial separation can be allowed only if the marriage is valid. If the parties want to resume cohabitation, an order of the court rescinding the decree will be necessary. Generally, the court will rescind the decree whenever parties ask for it. If the cohabitation is not resumed for a period of one year or more after the passing of the decree of judicial separation, any party may apply for divorce under Section 13 (1-A) (i) of the Hindu Marriage Act, 1955.
Consequences of Judicial Separation:
After a decree is passed in favor of the parties,
- They are not bound to cohabit with each other;
- They are entitled to separate from each other and all basic marital obligations remain suspended;
- Marital intercourse no longer remain enforceable;
- Marital obligations and rights are not available to them;
- They cannot remarry during the period of separation;
- Either party may be entitled to get maintenance from the other if the situation so warrants.
- If any of them remarries, he or she will be guilty of bigamy.
- In the event of one of the parties dying, the other party will inherit the property of the deceased spouse. (Narasimha Reddy and others v. M. Boosamma AIR 1976 AP 77)
Grounds for Judicial Separation Section 13(1) and 13(2):
The grounds for judicial separation are the same as for divorce as given under Section 13(1) of the Act. Either party to the marriage, whether solemnized before or after commencement of the Hindu Marriage Act, 1955 can under Section 10 of the Act file a petition for judicial separation on any one ground as prescribed in Section 13(1) and in case of wife also on any of the grounds specified in Section 13(2) of the Act.
- Adultery: If other spouse after the solemnization of the marriage had voluntary sexual intercourse with any person other than his or her spouse after solemnization of marriage.
- Cruelty: If after solemnization of marriage, one of the spouses treats the other with cruelty. Cruelty can be of both kinds: physical and mental. It is physical when the body is injured. It is mental when feeling and sentiments are wounded. The petitioner may be meted with the cruelty of either or both types.
- Desertion: Desertion means withdrawing from the matrimonial obligation, i.e., not permitting or allowing and facilitating the cohabitation between the parties. If the other party has deserted the spouse without the consent or against the wish of such party and includes the willful neglect of the petitioner by the other party to the marriage for a continuous period of 2 years without any reasonable ground immediately preceding the presentation of the petition.
- Conversion: If one of the spouses has ceased to be a Hindu. When one spouse voluntarily relinquishes one’s religion and adopts another distinctive religion after formal ceremonies, it is conversion on his part.
- Insanity: If the other party is of unsound mind or has been suffering continuously from mental disorder of such a kind and to such an extent that the petitioner cannot live with the other party.
- Leprosy: If the other party has been suffering from a virulent and incurable form of leprosy.
- Venereal disease: If the other party has been suffering from venereal disease in a communicable form.
- Renounced the world: If the other spouse has renounced the world by entering any religious order. Entering into the sanyasa ashrama in the old age is in accordance with Hindu religion. A person may enter into a holy order even at a young age and it is not contrary to the Hindu religion. But it becomes a ground for judicial separation.
- Presumption of death: Nothing has been heard about the spouse’s aliveness for seven years.
All these grounds shall discussed in detail in upcoming Articles.
In addition to the above-mentioned grounds, Sub- Section (2) of Section 13 of the Hindu Marriage Act, 1955 provides four additional grounds to the women for obtaining judicial separation from her husband. Thus, a wife may file a petition for judicial separation on any one of the following four grounds:
- Husband has more than one wife living: If the husband had married before the commencement of the Act and after the commencement of the Act has again remarried either of the wives can present a suit for judicial separation provided the other wife is alive at the time of presentation of the petition;
- Rape, Sodomy or Bestiality: If a Husband is guilty of offense like rape, sodomy or bestiality, the wife can present a petition for judicial separation;
- A Criminal Suit Against Husband: If in a suit under Section 18 of the Hindu Adoptions and Maintenance Act, 1956 or in a proceeding under Section 125 of the Code of Criminal Procedure, 1973, (or under the corresponding Section 488 of the Code of Criminal Procedure 1898, a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards;
- Marriage before the age of fifteen years: If the marriage of women was solemnized before attaining 15 years of age, on her attainment of 15 years she could repudiate it but before attaining the age of 18 years.
Section 13 lays down three types of grounds for judicial separation, which may be classified as follows:
- Nine grounds based on the “fault-disability” theory of divorce which only the ‘aggrieved spouse’ may avail. These are laid down in sub-Section (1).
- Two grounds based on the “Break down” theory of divorce which either the ‘aggrieved’ or the ‘guilty’ spouse may avail.
- Four special grounds, which only a wife can avail. These are laid down in subSection (2).
In all, there are 15 grounds for judicial separation. This Section has, since its initial enactment in 1955, been amended twice- first in 1964 and then, drastically in 1976.
Difference Between Judicial Separation and Divorce:
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Judicial Separation |
Divorce |
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A petition for judicial separation allowed under Section 10 of the Hindu Marriage Act, 1955. |
A petition of for divorce allowed under Section 13 of the Hindu Marriage Act, 1955. |
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This petition can be filed at any time post marriage. |
This petition can be filed only after completion of one year of marriage. |
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It is one step process of judgment. If grounds are satisfied, decree is granted directly.
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It is two steps process of judgment. First reconciliation, then divorce.
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Temporary suspension of marriage. |
It is an end of marriage |
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They cannot remarry during the period of separation |
They can remarry after divorce and all appeals (if any) are set aside. |