Judicial Separation under Hindu Marriage Act
Authored By- Sneha Saha
Keywords: marriage, separation, divorce, petition, case, laws.
Legal Separation is a choice to separate, through which both the gatherings to marriage are offered time to determine their issues and put forth attempts to spare their bombed marriage by living independently. The legal partition doesn't remove the status of legitimately married a couple. This arrangement has been embraced by the Indian assembly since marriage is considered as a 'holy observance, ' under Hindu Law and the Court must forestall the breakdown of such an association. And Hindu Marriage Act helps the spouse to separate if their relationship doesn't work and also gives remedy to rethink about the marriage before legally separating from each other.
The concept of marriage is considered the most important and essential arrangement between a man and a woman. The ceremony of marriage considers as most auspicious arrangements. The duties of marriage based on Hindu religion it is the strong connection which is between the husband and wife, and it cannot be broken easily and it is endless. It also states that death cannot also break the relationship between husband and wife. The marriage ceremony is followed by the rituals, and practices. So, it can be seen that according to the old regimen of the marriage there are no grounds where both parties have any consent to separate from each other if any issue arises daily. Therefore, based on new rules the Hindu Marriage Act was incorporated so to provide justifiable limits and grounds to both parties if they are not willing to continue their marriage and want to revoke their said marriage.
Concept of Judicial separation in India
Judicial separation is a provision under Hindu marriage laws where it states that both the husband and wife get an opportunity to re-think about their marriage before further working with divorce proceedings. Law gives chance to reconsider their relationship at the same time guiding to live separately. Under judicial separation both the parties live separately for a specific period in need of space and independence to think about the relationship. During this period they live apart but carry the same legal status.
Section 7 reads: (1) A Hindu marriage may be solemnized following the customary rites and ceremonies of either party thereto.
(2) Where such rites and ceremonies include the Saptapadi (that is, the taking of seven steps by the bridegroom and the bride jointly before the sacred fire), the marriage becomes complete and binding when the seventh step is taken.[i]
Section 10 reads: (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 the case of a wife also on any of the grounds specified in sub-section (2) thereof, as grounds on which a divorce petition 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 with the truth of the statements made in such petition, rescind the decree if it considers it just and reasonable to do so.
Grounds for Judicial separation
• Adultery: either of the spouses voluntarily had sexual intercourse with another person except for his/her spouse.
• Cruelty: when spouses treat each other with cruelty and cause physical and mental pain after marriage.
• Desertion: if the spouse leaves the other spouse without informing him/her, not alive or missing for seven years.
• Conversion: if any spouse converts his/her religion other than Hindu can seek judicial separation.
• Unsound mind: if any spouse is suffering from any mental illness, and it is difficult to live for the other spouse.
• Leprosy: either of the spouse if suffering from an illness like leprosy which cannot cure the other party can file for separation
• Venereal disease: if any party to the marriage has a disease that is incurable and communicable and has not been known to the other spouse during the marriage, could be a valid ground for filing a petition for judicial separation.
• Renounced the world: renouncing means giving up the world and live a holy and spiritual life i.e. consider as sannyasa.
• Civil death: if a person is not found for seven years, and neither his/her relative heard from him/her and consider to be dead.
Other grounds for the wife to seek separation :
Bigamy: if the husband marries other women while he is already married then both the wives can claim a petition with the condition that another wife has to be alive while filing the petition.
Rape, sodomy, or bestiality: if the husband is guilty of charges like rape, bestiality, or sodomy after marriage can file a petition for separation.
Repudiation of marriage: a girl can claim judicial separation if her marriage happens before she's attending the age of 15years.
Filing petition for Judicial separation
Based on section 10 of the Hindu Marriage Act,1955 it says that judicial separation is provided to both the husband and wife who is married under the said section. Either of the parties who are facing issues in the marriage can file a separation in the district court under section 10 of the Hindu Marriage Act,1955. And once the petition is filed and the order is being passed the spouses are not liable to live together.
The following essentials required are :
(a) The marriage between husband and wife must be practiced and solemnized under the Hindu Marriage Act,1955.
(b) The respondent should reside within the jurisdiction of the court where the petition is filed.
(c) Husband and wife have to live together for a certain duration during filing the petition.
According to Order VII Rule 1 of the Civil Procedure Code, the petition must include :
1. The date on which and place where the marriage was performed.
2. The person has to be Hindu by his/her affidavit.
3. Name, status, and residence of both parties.
4. Name, date of birth, children gender to be mentioned if any.
5. Evidence is required in proving the grounds for separation.
6. All the required details of litigation that has been filed before filing the decree of judicial separation or divorce.
Differences between Judicial separation and Divorce
1) In the case of judicial separation, parties can file separation at any time after marriage when they think. But in case of divorce, parties can seek only after one-year completion of the marriage.
2) In a judicial separation, it only terminates the marriage for a certain period In divorce the marriage ends permanently, and they are no longer husband and wife.
3) An act of adultery is sufficient ground for judicial separation. In a divorce, if a spouse living an adulterous relation then the only party can file for divorce.
4) In case of judicial separation both the parties get time to re-consider. But in divorce, as their relationship comes to a legal end they do not get that opportunity to re-conciliate.
5) Judicial separation goes through one judgment procedure. While divorce goes through two judgment one when the petition is filed and next on post six months.
In Gomathi vs. Kumaragurrupaan, it was held that if the pronouncement of judicial separation hosts passed, and the spouses have not lived together inside those periods that is one year in the wake of passing the declaration for legal detachment. At that point, a request for separation can be recorded. And at that time of one year is determined from the day, the first request has been passed.
In Narasimha Reddy vs. M Boosamma, it was expressed by the court that once the declaration of legal separation is passed that doesn't, imply that it is the finish of the conjugal status between the parties.
In our nation marriage is considered to be a very pure and sacred form of marriage and society cannot accept the fact one moving apart from his/her relationship. But if a person is not happy and cannot work their marital relationship then it is better to get off from those relations.
Hindu Marriage Act,1955 provides help to seek relief from the marriage by filing a divorce. This act not simply just helps to break the relation by suggesting the divorce, proper valid grounds had to be given by the parties on which judicial separation and divorce petition can be filed. It also helps the parties to rethink about their marriage, but also at the same time, free them from martial bonds.
[i][online] Available at: <https://devgan.in/hma/section/7/> [Accessed 9 September 2020]. [ii]Indiankanoon.org. 2020. Section 10 In The Hindu Marriage Act, 1955. [online] Available at: <https://indiankanoon.org/doc/888857/#:~:text=(1)%20Either%20party%20to%20a,sub%2Dsection%20(2)%20thereof> [Accessed 9 September 2020].