CONCEPT OF JUDICIAL SEPARATION UNDER HINDU LAW

    Marriage is considered as a sacrament in the Hindu religion, implicitly denoting that marriage is permanent and cannot be dissolved. Hindus conceive their marriage as a holy and sacramental tie but not as a contractual union. In older days, the spouses’ consent was not considered since Hindu marriage is ordained as an indispensable Sanskar (sacrament) for begetting a son for discharging his (father) debts.

    However, the emerging laws in the 20th century accommodated the will and welfare of the people. Thereby, the law concerns the consent of the spouses and makes it essential in their marriages. The law also guarantees finite freedom to women to such an extent to make her own decision. So marriage can neither be dissolved nor even be legally separated without any reputation regarding dissolution to the marital status.       

    MARRIAGE 

    In Hindu law, the notion of marriage is to establish a permanent relationship between husband and wife. Further, the Hindu Marriage Act, 1955, propounds certain conditions and requisite ceremonies for a Hindu Marriage under ss. 5 and 7.

    CONDITIONS

    Section 5 of the Hindu Marriage Act, 1955 provides requirements to be fulfilled for the solemnization of a Hindu marriage, scilicet [1]:

    • During the marriage, either party to marriage should not have a spouse living at that time of the marriage[s.5 (i)].
    • At the time of marriage, neither party should not be of unsound mind. Since he/she becomes incapable of giving a valid consent to the marriage as a consequence of such unsoundness[s.5 (ii)(a)].
    • At the time of marriage, neither party should be such that suffers from mental disorder of such a kind or to such an extent, who, though capable of giving a valid consent, is considered as unfit for marriage and for begetting children [s.5 (ii)(b)].
    • At the time of marriage, neither party to the marriage should not be affected by recurrent attacks of insanity [s.5 (ii)(c)].
    • During marriage, the bridegroom should have attained the age of 21 years and the bride the age of 18 years [s.5 (iii)].
    • The parties to the marriage should not be within the degrees of prohibited relationship unless the custom or usage that governs both allows for their marriage [s.5 (iv)].
    • The parties should not be sapindas of each other unless the custom or usage which governs both allows their marriage [s.5 (v)].   

    CEREMONIES

    Section 7 of the Hindu Marriage Act, 1955, elaborates on the necessary ceremonies to perform for a valid Hindu marriage [2]. Under s. 7 (1), a Hindu marriage may be solemnized according to either party’s customary rites and ceremonies. Such customary rites and ceremonies under s.7 (2) also include saptapadi, i.e., performing seven steps by the bridegroom followed by the bride jointly in front of a sacred fire. Thus, the marriage becomes complete when the last seventh step is taken.

    JUDICIAL SEPERATION

    MEANING

    Judicial Separation is a legal provision under the Hindu Marriage Act, 1955, in Hindu Law, which formally separates the married spouses. Both spouses are given a specific period to realize their marital status, whether to be continued or not. The period in which they are separated is called judicial separation. The court’s grant of judicial separation makes no obligation to either spouse to cohabit with each other. Judicial separation does not affect the marital status of the spouses. Hence, it is clear that their marital status is not dissolved on judicial separation.

    SECTION 10, HINDU MARRIAGE ACT, 1955

    Section 10 of the Hindu Marriage Act explains judicial separation. Any spouse, whether solemnized before or after the commencement of Act of 1955, may file a petition praying for a decree for judicial separation on either of the grounds mentioned under Section 13(1). The wife can also apply for judicial separation by presenting a petition on either of the grounds mentioned under 13(2). Under Section 13, the grounds are the crucial grounds for which the divorce might have been presented [3].

    When an order for judicial separation is granted, it is no more an obligation for the petitioner (either of the spouse) to cohabit with the respondent (either of the spouse). But the court may revoke or repeal the granted order if it considers being just and reasonable to do so only in the event of an application by petition of either party and on being satisfied with the truth of the statements made in such petition.

    https://legalreadings.com/k-m-nanavati-v-state-of-maharashtra-case-analysis/

    GROUNDS

    Under Section 13, if any marriage is solemnized before or after the commencement of the Hindu Marriage Act, 1955, either husband or wife may present a petition for a decree for dissolution of marriage, i.e., divorce. The grounds for divorce and judicial separation are the same. Thus, the grounds for judicial separation may be pleaded are as follows [4]:

    • UNDER SECTION 13(1):
    • ADULTERY [s. 13(1)(i)] – adultery is defined under s. 497 of the Indian Penal Code, 1860, where whoever has sexual intercourse with any person he believes is the wife of another man. Such sexual intercourse without the consent or connivance of that man and is not amounting to rape, a person is said to be guilty of adultery and punishable. In the case of a wife, she can be punishable as an abettor.

    With regards to adultery’s unconstitutionality, it is to be cleared in Joseph Shine v. Union of India [5] that adultery could be a ground for divorce, but not a criminal offense, and that thought of adultery as a crime is a retrograde step. Hence, adultery can be pleaded as a ground for divorce as well as for judicial separation.

    • CRUELTY [s. 13(1)(ia)] – Cruelty is a course or conduct of one, which is adversely affecting the other. Cruelty may be physical and mental. Further, s. 498A of IPC, 1860, elaborates cruelty means any willful act likely to drive a woman to commit suicide or cause grave injury or danger to her life or harassment of women with a view of coercing her or any person related to her to meet any unlawful demand.  
    • DESERTION [s. 13(1)(ib)] – When either spouse is deserted for a continuous period of two years immediately preceding the presentation of the petition, the same is considered as a conduct of  willfully neglecting the other spouse, without reasonable cause.
    • CONVERSION [s. 13(1)(ii)] – Where either of the spouses converted to another religion and ceased to be a Hindu, the same shall be a valid ground for judicial separation. 
    • UNSOUND MIND [s. 13(1)(iii)] – When the petitioner finds it reasonable that he/she cannot live with the respondent because of the unsoundness of the mind of the respondent, he/she may willinging seek separation.
    • LEPROSY [s. 13(1)(iv)] – In case where either of the spouses is suffering from a virulent and incurable form of leprosy, i.e., a disease that mainly affects the skin, eyes, and surface layer of the upper respiratory area.
    • VENERAL DISEASE [s. 13(1)(v)] – Wherever either spouse suffers from any communicated form of venereal disease (e.g., gonorrhea).
    • RENOUNCED THE WORLD [s. 13(1)(vi)] – When the spouse has renounced the world by entering to start a holy life under any religious order.
    • PRESUMED DEATH [s. 13(1)(vii)] – When either of the spouses is not heard alive or is missing or unable to be found alive for a period of seven or more years.
    • UNDER SECTION 13(2):

    This section specifies specific grounds for which only a wife may present a petition for dissolution of her marriage, they are:

    • BIGAMY [s. 13(2)(i)] – When the  husband marries another woman while his first spouse is alive, such an act may validly empower the first wife to seek judicial separation.
    • RAPE, SODOMY, OR BESTIALITY [s. 13(2)(ii)] – When the husband, after solemnization of the marriage, proved to be guilty of offenses like rape and the most aggravated form of rapes, i.e., sodomy or bestiality.
    • NON-RESUMPTION OF COHABITATION [s. 13(2)(iii)] – In a suit, when a decree or order has been passed against the husband awarding maintenance to a wife living apart from the husband under s.18 of Hindu Adoptions and Maintenance Act, 1956 or under s. 125 of the Code of Criminal Procedure, 1973 or under s. 488 of the Code of Criminal Procedure, 1898 and that after passing of such decree or order, the cohabitation between the spouses has not been resumed for one year or upwards, the wife may validly seek judicial separation. 
    • REPUDIATION OF MARRIAGE [s. 13(2)(iv)] – The wife has the right to seek judicial separation from a marriage that was solemnized before she had attained the age of 15 years, provided that she has repudiated it after attaining the age of 15 years and before attaining the age of 18 years.

    Further, when there is no cohabitation between the parties to a marriage for a period of one or more years after passing a decree for judicial separation, either of the spouses may pray for a petition to divorce under section 13 (1A) (i) of the Hindu Marriage Act, 1955.

    CASE STUDIES

    1. In Yashoda Dai v. K.B. Kalavkar [6], the court stated that trivial matters that cause quarrels, such as the mother-in-law’s presence in the family, will not be considered as mental cruelty. Hence, judicial separation was not granted.
    2. In Shakuntala v. Om Prakash [7], it was held that for a valid desertion as a ground for judicial separation, the term mentioned under the Hindu Marriage Act, 1955 should be satisfied. i.e. the desertion by either party to marriage must be for a statutory period of two years preceding the date of presentation of petition.
    3.  In Bishwanath v. Anjali [8], the court clarified that for a decree of judicial separation to be granted, the marriage between such parties should be a valid marriage recognized under Hindu Marriage Act, 1955.
    4. In Hirachand Srinivas Managoankar v. Sunanda [9], the Apex Court awarded no restriction in the grant of decree for judicial separation can further move to divorce since the adulterous conduct of the wife has been proved.
    5. In Shyam Sundar v. Santadevi [10], the court stated that pleading for judicial separation for cruelty as a ground is sufficient because the act of which the relatives of her husband injured the wife in the presence of the husband was proved. But the husband also ignored and failed to save her.
    6. In M. Jasmine Devapriya v. A. Stephen Dhanraj [11], decree for judicial separation is granted to the petitioner (wife) because it is not possible to cohabit with the spouse (husband) who has been affected by virulent leprosy and his disease had proved by the petitioner beyond all reasonable doubts.

    CONCLUSION

    Marriage should be performed with both parties’ valid consent. The sanctity of Hindu marriage entails being together for seven lives. Nevertheless, behindhand it may be dissolved on any ground available under the Hindu Marriage Act, 1995. Divorce differs from judicial Separation since, in divorce, the spouses’ marital status comes to an end, and there is no reunion of the same spouses. Still, judicial Separation separates the spouses temporally, and they may well be reunited. Thus, the concept of Judicial Separation is to separate the parties to marriage without any dissolution to their marital status.

    REFERENCES

    [1] The Hindu Marriage Act, 1955, s. 5.

    [2] The Hindu Marriage Act, 1955, s.7.

    [3] The Hindu Marriage Act, 1955, s. 10.

    [4] The Hindu Marriage Act, 1955, s. 13.

    [5] 2018 SCC OnLine SC 1676.

    [6] AIR 1992 Kar 368.

    [7] 19 (1981) DLT 64.

    [8] AIR 1975 Cal 45.

    [9] (2001) 4 SCC 125.

    [10] AIR 1961 All 563.

    [11] 2017 SCC OnLine Mad 26884.


    BY HARI HARAN.V | SCHOOL OF EXCELLENCE IN LAW , PERUNGUDI

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