A Medico-Legal Case (MLC) can be defined as a case of injury or ailment, etc., in which investigations by the law-enforcing agencies are essential to fix the responsibility regarding the causation of the injury or ailment. It may be a legal case requiring medical expertise when brought by the police for examination. In this article we shall discuss medico-legal aspect of sexual assault.

List of Medico-Legal Cases:

• All cases of injuries and burns -the circumstances of which suggest commission of an offense by somebody. (Irrespective of suspicion of foul play)
• All vehicular, factory or other unnatural accident cases specially when there is a likelihood of patient’s death or grievous hurt.
• Cases of suspected or evident sexual assault.
• Cases of suspected or evident criminal abortion.
• Cases of unconsciousness where its cause is not natural or not clear.
• All cases of suspected or evident poisoning or intoxication.
• Cases referred from a court or otherwise for age estimation.
• Cases brought dead with improper history creating suspicion of an offense.
• Cases of suspected self-infliction of injuries or attempted suicide.
• Any other case not falling under the above categories but has legal implications

Medical professionals are often unsure of the course of action in medico-legal cases. Thus, they are rather reluctant to attend to cases of accident for fear of being involved in unnecessary litigation later on. Even in cases of serious accidents, medical professionals hesitate to offer help, sometimes resulting in patient’s death. The first question that arises in such cases is whether any medical man can be forced to accept an accident victim. The answer to this till some time back was very clear. The doctor could choose patients according to his own will.

In Parmananda Katara Vs Union of India, AIR 1989 SC 2039 case, the apex court held that every doctor is bound to provide medical aid to the victims irrespective of the cause of injury; he cannot take any excuse of allowing law to take its course. Hence, if now a doctor refuses treatment, in case of emergency, he/she could be sued under the law. Once the doctor accepts the case and starts treatment, then the doctor-patient relationship is established.

The doctor or hospital is required to examine a victim of rape if she reports to the hospital directly, and voluntarily, without a police requisition.

In State of Karnataka v. Manjanna, 2000 (3) SCR 1007 case, the Supreme Court recognized that the rape victim’s need for a medical examination constituted a “medicolegal emergency”. Second, it was also the right of the victim of rape to approach medical services first before legally registering a complaint in a police station. The hospital was obliged to examine her right away; they could always subsequently initiate a police complaint on the request of the victim. The judgment also recognizes the three ways by which a hospital may receive a victim of rape: voluntary reporting by the victim; reporting on requisition by the police, and reporting on requisition by the Court.

Medico-Legal Aspect of Sexual Assault:

Section 375 of the Indian Penal Code defines the term “Rape” as follows:

A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:

(First) — Against her will.

(Secondly) —Without her consent.

(Thirdly) — With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.

(Fourthly) —With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be law¬fully married.

(Fifthly) — With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupe¬fying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

(Sixthly) — With or without her consent, when she is under sixteen years of age.

Explanation: Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.

Exception: Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.

Object of Rape Evaluation Test:

Victims of alleged Sexual offences like rape may be brought for the medical examination by police, or by order of a court, or the victim may come on their own. In the event the victim comes directly, the police will be informed and necessary action will be taken to register a case. The objects of medical examination are as follows:

1. Medical assessment and treatment of injuries and assessment, treatment, and prevention of pregnancy and Sexually transmitted diseases (STDs)
2. Collection of forensic evidence;
3. Psychological evaluation;
4. Psychological support;
5. Prepare reports required under the law.

The principal features of the examination are:

1. Primary data;
2. Physical Examination and mental condition;
3. Signs of struggle on clothes and body;
4. Local examination of the genitals.

Medico Legal Aspect of Sexual Assault with Reference to Victim:

Section 53(5) of the CrPC talks about examination of a female victim, which should be done by or under the supervision of a female doctor.
Section 164(A) CrPC explains the legal requirements for medical examination of a victim of rape. One of the main elements of this is that the consent of the victim is mandatory and should be part of the report.

The Section provides for a medical examination of the victim of rape by a registered medical practitioner. It also provides that when no woman doctor is available, there is no bar against a male doctor carrying out the examination, if the victim consents. Though getting the examination done by a woman doctor is ideal, the law does not mandate it, keeping in mind that a medical examination should not be postponed because of an extreme situation such as the want of a female doctor.

The same section mandates that a medical examination must be carried out within 24 hours of the police receiving information, thus recognizing this as a medico legal emergency and putting a timeframe for the investigating officer.

The report shall state precisely the reasons for each conclusion arrived at. The exact time of commencement and completion of the examination shall also be noted in the report. The registered medical practitioner shall, without delay, forward the report to the investigating officer, who shall forward it to the Magistrate referred to in section 173 of Cr. P. C. as part of the documents referred to in clause (a) of sub-section (5) of that section.

Medico Legal Aspect of Sexual Assault with Reference to Accused:

Section 53A of the CrPC provides for a detailed medical examination of a person accused of an offence of rape or an attempt to commit rape. A detailed medical examination is to be carried out by a registered medical practitioner (only allopathic doctors registered under the MCI) employed in a hospital run by government or local authority – and in the absence of such a practitioner within the radius of 16 km from the place where the offence has been committed, by any registered medical practitioner acting on the request of a police officer not below the rank of a sub inspector.

The medical examination should be carried out without any delay and a “reasoned” report be prepared recording the name and address of the accused, the person by whom he was brought, the age of the accused, marks of injury if any, a description of materials collected from the accused for DNA profiling, other material particulars in reasonable detail, and the exact time of commencement and completion of examination. The report should be forwarded without any delay to the investigating officer who in turn shall forward it to the magistrate concerned.

The report shall state precisely the reasons for each conclusion arrived at. The exact time of commencement and completion of the examination shall also be noted in the report. The registered medical practitioner shall, without delay, forward the report to the investigating officer, who shall forward it to the Magistrate referred to in section 173 of Cr. P. C. as part of the documents referred to in clause (a) of sub-section (5) of that section.

Where the accused in a case of sexual offence in police custody is brought for medical examination, consent is not required. Samples may be collected and handed over to the police for forensic examination.

SAFE Kit:

The kit was developed in Chicago in the mid-1970s by Louis Vittulo, in order to provide a more uniform protocol for evidence collection after sexual assaults. For years, the standardized tool was referred to as a Vitullo kit. Today it is colloquially referred to as a rape test kit or a rape kit, which is used interchangeably to refer to the specific evidence that is obtained through the use of the rape kit. Other terms and abbreviations used are sexual assault kit (SAK), a sexual assault forensic evidence kit (SAFE), sexual assault evidence collection kit (SAECK) and PERK (Physical Examination Recovery Kit).

A SAFE kit consists of small boxes, swabs, microscope slides, sterile containers, and plastic bags for collecting and storing evidence such as clothing fibers, hairs, saliva, blood, semen or body fluid from lips, cheeks, thighs, and vagina.

The kit is useful for investigations conducted after an alleged sexual assault, and can be used in evidence to punish the assailant. It is equally useful to exonerate persons who have been falsely accused of sexual assault.

In Delhi Commission of Women v. Delhi Police, W.P. (CRL) 696/2008 case, the Court mandated certain changes in the police system, health services, child welfare committees, legal services and support services in order to give justice to victims of rape. The court pronounced that a SAFE Kit (Sexual Assault Forensic Evidence collection kit) be used by all medical personnel for gathering and preserving physical evidence following sexual assault. Court issued guidelines to police, medical examiners, courts, and prosecution. Click here for guidelines

Guidelines for attending alleged victim of sexual offence

1. The date and time of arrival of the victim must be mentioned, both in the case sheet and the MLC Register. The duplicate copy of case sheet and Medicolegal Report shall be preserved for future reference.
2. The date and time of examination will be mentioned in the case sheet.
3. Case sheet will be initiated, noting personal particulars of the victim, along with date and the time of reporting.
4. MLC will be initiated after filling the MLC Register available at examination facility.
5. The alleged victim will be admitted if the medical condition is serious.
6. The police will be informed telephonically followed by in writing after filling up the MLC Register.
7. The Senior Registrar / Station HQ will be informed.
8. At least two identification marks of the victim will be mentioned in the case sheet as well as in MLC register.
9. Report to the police will be given by name of the victim or as an unknown case (If name of the victim is not known). Care must be taken to preserve the confidentiality of the victim from others not related with the case.
10. Police will register a case under the relevant section of the IPC.
11. The police may take the victim and the accused for medical examination at a hospital which is authorized to carry out medicolegal work.
12. Neither the victim nor accused in cases of sexual offences should be permitted to wash or take a bath till the medical examination is completed.
13. The proforma for recording medical examination of alleged rape victim and the accused are enclosed as in prescribed format respectively.
14. Consent of the victim must be obtained before starting the examination. The steps of examination and their purpose should be explained to the victim in a language she understands. The examination is to be carried out in the presence of a female attendant.
15. All injuries present on the body will be recorded. Line diagrams depicting the front and back of the body may be used for a better description of location of the injuries.
16. If the clothes are the same as those worn during the occurrence of alleged sexual offence, they should be carefully examined for the presence of blood, seminal stains, mud etc.
17. If there are any marks of suspicious stains, the clothes should be preserved with a view to forwarding them to forensic laboratory in prescribed format.
18. If there are foreign hairs, fibres, debris under the nails etc, they must be carefully preserved and sent to experts of forensic laboratory for comparison with those found on the accused. Specimens should include vaginal swab, preferably from the posterior fornix.
19. Care must be taken to preserve various samples of medicolegal importance for their submission to respective police authority.
20. In case the victim reports herself directly to the hospital after the alleged crime, she should not be sent to the police station for legal formalities; instead the police will be called to the hospital for the necessary requirements.

Other Legal provisions Associated with Sexual Assault:

• U/s 228A of Indian Penal Code, no person can disclose the name of the rape victim and if anybody discloses the name, he shall be punished with either description for a term which may extend to two years and shall also be liable for fine.
• U/s 114-A of Indian Evidence Act, presumption can be made as to the absence of consent in certain prosecutions for rape. Whenever the person of a female victim is to be examined under section 53 [5] of Criminal Procedure Code (Cr. P. C), the examination shall be made only by, or under the supervision of, a female registered medical practitioner.
• U/s 327(2) of Code of Criminal Procedure, there should be in camera trial for all rape victims.

Conclusion:

Medico legal evidence has been considered an important component in the prosecution of crimes, especially those related to sexual violence. The courts heavily rely upon it. However, it is important to understand that forensic science itself is a new and emerging discipline. No forensic method has rigorously been able to demonstrate a definitive connection between a specific individual and a sample or source. So special precaution should be taken and care, emphasis should be laid on section 53 CrPC and 164A CrPC.

For More Topics in Medical Jurisprudence Click Here

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These are Bare Act Provisions of Section 13 of the Hindu Marriage Act, 1955. The Provisions of Section 13 shall be discussed in upcoming articles

Section 13: Divorce:
(1) Any marriage solemnised, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party

(i) has, after the solemnisation of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or

(ia) has, after the solemnisation of the marriage, treated the petitioner with cruelty; or

(ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or

(ii) has ceased to be a Hindu by conversion to another religion; or

(iii) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.

Explanation:

(a) the expression “mental disorder” means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia;

(b) the expression “psychopathic disorder” means a persistent disorder or disability of mind (whether or not including sub-normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party, and whether or not it requires or is susceptible to medical treatment; or

(iv) has been suffering from a virulent and incurable form of leprosy; or

(v) been suffering from venereal disease in a communicable form; or

(vi) has renounced the world by entering any religious order; or

(vii) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive;

Explanation:

In this sub-section, the expression “desertion” means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly.

(1A) Either party to a marriage, whether solemnised before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground

(i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of 22 [one year] or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or

(ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of 22 [one year] or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.

(2) A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground,

(i) in the case of any marriage solemnised before the commencement of this Act, that the husband had married again before such commencement or that any other wife of the husband married before such commencement was alive at the time of the solemnisation of the marriage of the petitioner: Provided that in either case the other wife is alive at the time of the presentation of the petition; or

(ii) that the husband has, since the solemnisation of the marriage, been guilty of rape, sodomy or bestiality; or

(iii) that in a suit under section 18 of the Hindu Adoptions and Maintenance Act, 1956 (78 of 1956), or in a proceeding under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) [or under the corresponding section 488 of the Code of Criminal Procedure, 1898 (5 of 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 the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards; or

(iv) that her marriage (whether consummated or not) was solemnised before she attained the age of fifteen years and she has repudiated the marriage after attaining that age but before attaining the age of eighteen years.

Explanation.

This clause applies whether the marriage was solemnised before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976).

Section 13-A. Alternate Relief in Divorce Proceedings:

If any proceeding under this
Act, on a petition for dissolution of marriage by a decree of divorce, except in so far as the petition is founded on the grounds mentioned in clauses (ii), (vi) and (vii) of sub-section (1) of Section 13, the court may, if it considers it just so to do having regard to the circumstances of the case, pass instead a decree for judicial separation.

Section 13-B. Divorce by mutual consent:

(1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the District Court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976, on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.

(2) On the motion of both the parties made earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the mean time, the Court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree

Indian Legal System > Civil Laws > Family Laws > The Hindu Marriage Act, 1955 > Divorce (Section 13) Provisions

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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.

Prior to enactment of the Hindu Marriage Act, 1955, it was practiced that in the absence of a custom to the contrary, there can be no divorce between a Hindu husband and his wife, who by their marriage, had entered into a sacred and indissoluble union and neither conversion nor degradation nor loss of caste nor the violation of an agreement against polygamy dissolves the marriage tie.

In Keshav v. Gandhi 39 Bom 588 case, the Bombay High Court condemned a custom allowing divorce as a matter of course on payment of a fine fixed by the caste.

In Thangammal v. Gangayammal (1945)1 MLJ 229 case, the Madras High Court holds a custom valid which enables either spouse to divorce the other with the latter’s consent.

Provisions of Section 13 of the Hindu Marriage Act, 1955:

Either party to the marriage, whether solemnized before or after the commencement of the Hindu Marriage Act, 1955 can under Section 13 of the Act file a petition for divorce. This petition can be filed only after completion of one year of marriage. It is a permanent end of marital rights between the spouses. Thus in divorce, the marriage ends. The relief of divorce may be obtained in respect of any marriage whether solemnized before or after the commencement of this Act. Thus, Section 13 is retrospective as well as prospective operation.

Grounds for Divorce Section 13(1) and 13(2):

The grounds 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 be 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 a divorce from her husband. Thus, a wife may file a petition for divorce 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 an offense like rape, sodomy, or bestiality, the wife can present a petition for judicial separation;
• A Criminal Suit Against HusbandNon-Resumption of Cohabitation after a Decree/Order Of Maintenance: 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;
• Repudiation of Marriage: 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 divorce, which may be classified as follows:

1. 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).
2. Two grounds based on the “Break down” theory of divorce which either the ‘aggrieved’ or the ‘guilty’ spouse may avail.
3. Four special grounds, which only a wife can avail. These are laid down in subSection (2).

In all, there are 15 grounds for divorce.

Amendments in Section 13 of the Hindu Marriage Act, 1955:

This Section has, since its initial enactment in 1955, been amended twice- first in 1964 and then, drastically in 1976.

The Hindu Marriage Act, 1955 originally based divorce on the fault theory and enshrined 9 fault grounds in Section 13 (1) on which, either the husband or the wife could sue for divorce. Section 13 has undergone a substantial change by reason of subsequent amendments. The grounds mentioned in sub-Section (1) and (1-A) are available to both the husband and wife; while the grounds mentioned under sub-Section (2) are available only to the wife.

In 1964, Section 13 (1-A) has been inserted containing two clauses under which, non-resumption of cohabitation for two years or upwards after the decree of judicial separation or restitution of conjugal rights was made a ground of divorce. This is a modification of clauses (viii) and (ix) of Section 13 of the Hindu Marriage Act, 1955. By the Marriage Laws (Amendment) Act 1976, the period of two years is reduced to one year. Section 13 (1-A) introduced an element of Break-down theory in the Hindu Marriage Act 1955.

The Hindu Marriage Act, 1955 originally contained two fault grounds in Section 13 (2) on which, a Hindu wife alone could sue for divorce. The Marriage Laws (Amendment) Act 1976 has inserted two additional fault grounds of divorce for wife and a new Section 13-B under which, divorce by mutual consent has been made available as a matrimonial relief. Thus, in the modern Hindu law, the position is that all the three theories of divorce are recognized and divorce can be obtained on the basis of any one of them. Further, the customary mode of divorce is also retained.

Indian Legal System > Civil Laws > Family Laws > The Hindu Marriage Act, 1955 > Divorce

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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:

1. 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).
2. Two grounds based on the “Break down” theory of divorce which either the ‘aggrieved’ or the ‘guilty’ spouse may avail.
3. 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:

Indian Legal System > Civil Laws > Family Laws > The Hindu Marriage Act, 1955 > Judicial Separation

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