Judicial Separation Under Hindu Marriage

This article deals with Judicial Separation under the Hindu Marriage laws. The phrase ‘Judicial Separation’ denotes that it is a separation of husband and wife by the order of a judicial authority such as family courts in case of India. The article discusses the concept of Judicial Separation, grounds, and the effect of judicial separation on different rights.

Introduction

In Hindu culture and religion, Marriage is termed as the most sacred union of man and woman. There are certain responsibilities and obligations of the parties in marriage towards each other and one out of these is cohabitation. Hindu marriage is recognized as an ever-lasting bond which is imperishable even after death.

In accordance with prehistoric texts of Hindu religion, a male is considered to be half of his own before marriage and needs a woman to become a complete man, same is the case with females she is also not complete and both will attain their totality when they will get married.

But in today’s world, individuals have been given many rights, and therefore if an individual is unable to live with the person with whom he got married without any valid reason, then in law, such an individual may apply for judicial separation.

In Hindus, Marriage is governed by the Hindu Marriage Act,1955, and judicial separation is mentioned in section 10 of the above-mentioned act. This section deals with judicial separation and the consequences that flow from it. A decree of judicial separation does not terminate the marriage but on the other hand, it puts the obligation of conjugal rights to an end.

Concept of Judicial Separation

Marriage is a very essential part of the Hindu religion, therefore it cannot be terminated very easily because of this reason the Indian judicial system does not allow Divorce at the beginning when the party to the Hindu marriage approach the court for the termination of the marriage.

Court grants first, the legal remedy, known as Judicial separation. So that parties of marriage can self-analyse that whether the problems are resolvable or not. It is a substitute for the Divorce in which the spouse is given time for reconsideration.

In Judicial Separation, the marriage is not terminated and the husband and wife are still considered to be married. Judicial Separation means the order of a court directing the spouses to not perform conjugal rights for the specified period without the termination of a marriage. It is adapted from the British theory of “Mensa et thoro”.

As per the 1976 amendment, in Hindu Marriage Act,1955, the grounds on which the order of judicial separation is to be passed are the same as the grounds of divorce. The concept of Judicial separation was first introduced in the Special Marriage Act, then in the Hindu Marriage Act.

If any party approaches the court for Divorce, the court will order a decree of judicial separation for the self-analysis, in which the parties to the marriage are not obligated to perform conjugal duties of the marriage and after the specified time, if the problem persists between the couple then the court will order Divorce resulting in termination of the Marriage. Divorce is mentioned in the Hindu Marriage Act,1955 under section 13 for Hindu marriages.

In Subbarama Reddiar v. Saraswathi Ammal[1], Hon’ble Court held that Judicial Separation can be granted if the petitioner shows evidence that the respondent had committed adultery.

As per Section 10 of the Act, the aggrieved party in Hindu Marriage can file a plea in the District Court if the below-mentioned essentials have been adhered to:

• A couple got married according to Hindu marriage ceremonies and rites and does not violate any condition specified in the Hindu Marriage Act.
• A person against whom the petition has been filed should be in the Jurisdiction of the court in which such case is registered.
• Spouses should have performed conjugal rights for a specified period prior to filing the case under judicial separation.

Grounds of Judicial Separation

Any spouse in Hindu marriage can file a plea for Judicial separation under the grounds on which divorce can be granted under Section 13 of the act while the judicial separation is granted under Section 10 of the act.

• Adultery

It is mentioned in Section 13(1)(i) of the Hindu Marriage Act. It means if any of the spouses after his/her marriage has physical relation with any other person of his/her free will then, in this case, the other party may file the plea of Judicial Separation or Divorce under this act. It must be noted that the wife can file such a petition in the court if her husband commits rape, buggery, intercourse with an animal. If further such acts have been proved to be done then, the wife can also go for divorce with her husband.

In Hirachand Srinivas Managaonkar v. Sunanda[2], the Supreme Court said that the Adultery of any of the spouse if determined with evidence, then the court shall pass the order of judicial separation and the petitioner can apply for a divorce on the same ground.

In Revathi v. Union of India and Ors[3], Court held that if any of the spouses commits adultery then the other spouse cannot put criminal charges for the same but can only file for the order of Judicial separation and divorce. It was mentioned that it is not permissible under the court of law to charge the husband or wife for the wrongdoing act like adultery under section 497 of the Indian Penal Code which is now repealed.

In the case of Suvrai v. Saraswathi AIR 1967 Mad 85, the court held that in most cases the evidence is circumstantial and the circumstances under which the act is alleged to have been done must be determinative and in every probability must lead to a conclusion of illicit cohabitation.

• Cruelty

It is one of the grounds for conjugal relief. Cruelty means where the respondent is not dealing with the petitioner in a decent manner but in a cruel manner which is specified under Section 13(1)(i-a) of the act. Cruelty can be physical or of mental pressure by the respondent on the petitioner.

It must be noted that the Hindu Marriage Act does not define cruelty but in other personal laws like Muslim law, it is defined clearly and through which wife can take divorce or file for judicial separation from her husband. Cruelty is also defined under Section 498-A of the Indian Penal Code which is gender-biased and inclined towards women.

In Shyamsundar v. Santadevi[4], the petitioner was the wife who was severely injured by the kins of the husband. Despite this, the husband had not done anything to safeguard his spouse, therefore, the court held that this amounts to cruelty and sufficient ground for the Judicial Separation.

In Trimbak Narayan Bhagwat v. Kumudini Trimbak Bhagwat[5], the wife filed a petition in the Court that the husband took the guard of insanity in which court declared that it will not be considered as a rational guard in the plea of Judicial separation and divorce.

• Desertion

It is defined under Section 13(1)(i-b), in which it is stated that if one spouse is separated from the other spouse without any rational purpose i.e not cohabiting, the aggrieved party can file a plea for judicial separation if the same was in continuance for not less than 2 years.

It must be noted that if the respondent is showing irresponsible behaviour towards the petitioner and if the court is satisfied, then it will also amount to desertion.

In Rohini Kumari v. Narendra Singh[6], the respondent deserted her wife and the wife filed the plea of Judicial Separation. The Hon’ble Supreme court declared that the wife of the respondent along with the judicial separation will also be allowed to claim maintenance under the Hindu Marriage Act and Special Marriage Act.

In Guru Bachan Kaur v. Preetam Singh[7], the wife and husband were living separately for 7 years and the husband applied for divorce. The wife contended that the husband is irresponsible towards her and she wants him to understand the trouble between them. She was not in favour of divorce. Court declared that there is nothing like ‘collaborative desertion’, one party should be liable.

• Conversion

Section 13(1)(ii) states another ground on which a Judicial Separation plea can be filed. It provides that if any spouse in Hindu marriage changes its religion from Hindu to any other religion then, another spouse can file the petition for Judicial Separation. It must be noted that if a person becomes a hermit then also the spouse can claim judicial separation or divorce.

In Madhukar Bhaskar v. Saral[8], the court declared that if the person becomes Hermit and is not fulfilling his/her conjugal duties, the other party of the Hindu marriage can file a plea for the order of Judicial separation.

In Robasa Khanum v. Khodadad Bomanji[9], the Hon’ble court declared that a change of religion by one spouse without persisting from the execution of conjugal rights is no ground for Judicial Separation. It was established in this case that if the spouse who converted his/her religion is not making troubles in the execution of marital duties then the other spouse cannot apply for Judicial Separation or divorce.

• Leprosy and Venereal Disease

In the Hindu marriage Act,1955 it is mentioned that if any person in Hindu marriage is having a disease like Leprosy then under Section 13(1)(iv), other spouse can file for either divorce or Judicial separation. Along with this if the spouse is having an untreatable illness then the other spouse can file a plea for either Divorce or Judicial Separation under Section 13(1)(v).

In Ratna Manjari Das v. Dr Bhaskar Chandra Das[10], Hon’ble High Court of Odisha held if the spouse is filing for judicial separation or Divorce under the ground that the other spouse has a venereal illness, it must be proved that such illness is communicable and untreatable.

In M. Jasmine Devapriya v. A. Stephen Dhanraj[11], Hon’ble High Court of Madras held that if the respondent has leprosy then it must be proved that such illness is not curable and it is unfeasible for the petitioner to live with the respondent and execute conjugal duties.

• Insanity

If any person in Hindu marriage, husband or wife is combating with mental illness which poses danger for the other person in marriage due to his/her acts or behaviour, then the hurt person can apply for Judicial Separation or Divorce on the ground of Insanity under Section 13(1)(iii).

In Anima Roy v. Prabadh Mohan Ray[12], the husband and wife got married under the Hindu law and prior to two months, the respondent started showing symptoms of illness which is the sign of a rare disease and the doctor was unable to find the period in which it was developed. Court declared that it was not ascertained at the moment of marriage.

• Presumed Death

Under Section 13(1)(vii), it was given that if any spouse of Hindu Marriage is missing for 7 years and even his/her kinsmen do not know about him/her then such person in the eyes of law will be presumed to be dead and it is one of the ground for judicial separation.

Exclusive grounds only for the wife to file a plea for Judicial Separation or Divorce:

• Bigamy: If the Husband was married twice then the wife can apply for Judicial separation or divorce such ground mentioned in Section 13(2)(i).
• Age: Under Section 13(2)iv if the damsel is under the age of 15 years at the moment of Hindu marriage then she can apply for Divorce and Judicial separation.
• Other reliefs are: in the case of rape, buggery, and bestiality by the Husband. (explained above).

Conclusion

From the above article, it is clear that Judicial Separation is a legal instrument under Hindu Law in which courts provide both the parties of the marriage to self-analyze and reconsider his/her decision when the marriage is on the verge of its end. Judicial Separation puts the obligation to cohabitation to an end, although it does not affect the marital relationship.

The main objective of this law is that marriage is the most sacred bond between two persons and it is nearly impossible to terminate the same but as Laws change with society, such sections are introduced. Order of Judicial Separation can also be declared as cancelled when both the parties resolve their issues and apply for the same in the court.

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References:

• The Hindu Marriage Act, 1955
• https://www.legalbites.in/judicial-seperation/
• Paras Diwan, Modern Hindu Law, 22^nd 2013.

[1] (1966) 79 LW 382

[2] (2001) 4 SCC 125

[3] 1988 AIR 835

[4] AIR 1961 All 563

[5] AIR 1967 Bom 80

[6] (1972) 1 SCC 1

[7] AIR 1998 All 140

[8] (1971) 74 Bom. L.R. 496

[9] (1946) 48 BOMLR 864

[10] 1979 SCC Ori 115

[11] 017 SCC Mad 26884

[12] 1978 AIR 803

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1. Judicial Separation under Muslim Law
2. Restitution Of Conjugal Rights Under Hindu Law