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Judicial Separation


Authored By : Syeda Khizra Rizvi


Abstract

The procedure of marriage came up to establish a relationship between the wife and husband. According to the concept of old Hindu Laws, marriage is the formal ceremony and is a religious tie that cannot be broken and even death cannot break the relationship between a husband and a wife. The object of marriage is to permit a man and a woman to fulfill the rituals as religious duties of the life made by God and a man was imperfect without a woman and a woman i.e. Ardhangini is also incomplete without her husband. In modern laws, if a person does not want to continue his/her married life and does not want to extend any longer then he/she can request relief under the Hindu Marriage Act, 1955 by path of the Judicial Separation.

Keywords:

Dissolution, Marriage, dispute, divorce, separation.

Introduction

Under the legal terms judicial separation can be deemed as of a last resort before having the actual legal break up of marriage said as Divorce. The reason why such provision got enacted under Hindu Marriage Act is the anxiety among the legislature that the tensions and wear and tear of everyday life and the strain of living together do not result in breakup of a marital relationship. Once a decree for judicial separation is passed, both the partners i.e. a wife or husband, whosoever has approached the court, is having no obligation to live with his or her spouse .


The concept of Judicial Separation

Judicial Separation is a way provided under the law to give some time for self-analysis to both the parties i.e. husband and wife, of a disturbed married life. Law gives a chance to both to rethink about the extension of their relationship while guiding them as well to live separately. By doing this, the law allows them the independence and free space to give a thought about their future path and it is the last option provided to both the spouses for the legal breakup of the marriage.

According to section 10 of the Hindu Marriage Act, 1955 consist of the provision for judicial separation, as the section read as, "A decree for judicial separation could be sought of on all those ground on which decree is used for dissolution of marriage", i.e. divorce can be sought.

Judicial separation can be had on any of the following said grounds:

· In the case of Cruelty.

· In the case of Adultery.

· In the case of Insanity.

· In the case of Apostacy (Conversion of religion).

· In the case of Desertion.

· When having any Venereal disease in a communicable form.

· In condition of Virulent and incurable form of leprosy.

· Situation when Renunciation of world by going any religious order

· Either of the party has not been heard of as being alive for the period of 7 years.

There are also some extra grounds for the wife to ask justice are Bigamy, Rape, sodomy or bestiality by the part of husband committed after the solemnization of the marriage with the petitioner. Non-resumption of co-habitation between the parties at least till the period of one year after an award of maintenance was made by any court against the husband and in regard of the petitioner wife.

Further it is to be noted that divorce is also granted on these said grounds. Unless a case for divorce is filled, the question of granting judicial separation does not arise. Therefore, the Courts while going through with the applications for judicial separation shall keep in mind the specific grounds given for grant of relief claimed and insist on rigid proof to establish those grounds and shall not grant some relief or the other as a matter of said course. Thus, on a petition filed for divorce, the Court has discretion in respect of the grounds with regard to divorce other than those provided in section 13 (1A) and also some other grounds to grant restricted relief of judicial separation instead of divorce straightway if it is just having regard to the facts and circumstances.


Filing petition for Judicial Separation

Any partner who is hurt by another partner, can file a petition for Judicial Separation in a District Court under Section 10 of the Hindu Marriage Act, 1955 and the following have to be satisfied:

· The marriage between the wife and husband should be celebrated properly under the Hindu marriage Act.

· The respondent should be settled in the jurisdiction of the court where the petitioner filed the petition.

· The husband and wife lived together for a period before the filing of petition.

· Every petition should according to Order VII Rule 1 of the Civil Procedure Code, 1973 must contain:

· The place and date of marriage.

· The person should be a Hindu, by his/her affidavit.

· Name, status, address of both the parties

· Name, DOB and gender of children(in case any).

· Details of litigation filed before filing the decree for judicial separation or divorce.

· For the judicial separation, the evidence should prove the provided grounds.


Conclusion

A marriage is regarded as a sacred relation in our nation, but a person should have an exit from a relationship when he/she is not happy with that relation. People have faith towards the Hindu Marriage Act, 1955 that they can seek relief from the marriage by filing a divorce. This Act does not grant for leaving a relationship without any valid reason. There should be grounds on which the husband or wife can file a case for judicial separation or divorce. This Act has a great rule to solve the disputes between the spouses and free them from marital ties.

References

· http://www.helplinelaw.com/family-law/JUDISI/judicial-separation-in-india.html

· https://www.vakilno1.com/legalviews/judicial-separation-divorce-india.html

· http://www.legalservicesindia.com/divorce/judicial-separation.htm