This article has been written by Ms. C S Poorna a 2nd year student of Lloyd Law College.
Abstract
This article discusses a different option for separation for both husband and wife without termination of their marriage with the help of the court. Divorce is a method for separation well known by society. However, there are many negative effects after seeking a divorce. So judicial separation is a method in which the positive aspects of marriage can be seen before separating it by divorce. As per the Hindu Marriage Act 1955 what judicial separation is defined as, what are the grounds for which judicial separation can be approached by the people,the difference between both separation methods (i.e. divorce and judicial separation)? In the end, how judicial separation will affect society is seen in this article.
Introduction
- Hindu marriage
Marriage is a custom that creates a relationship between two different people. In India, various social practices and customs form a marriage. As marriage is considered religious, breaking of marriage was considered as an immoral act by the society. Marriage in Hindus was considered an unbreakable bond that not even god can break. As time passed society changed the concept of the unbreakable bond of marriage or it being an immoral act. This change evolved in society through the enactment of laws. In society, if both partners want to stay separately they are allowed with the help of laws that have been enacted. Divorce is one of the most known options for the partners willing to separate. Another option for the partners is judicial separation.
- Judicial separation
Judicial separation is a method by which both partners get separated with the interference of the court. In judicial separation, a legal order is passed by the court for both partners to live separately in which the conjugal rights (i.e. the rights which arise by marriage for both partners) get separated without dissolving the marriage. The judicial separation is done because if both parties live separately they might evolve feelings for each other and with love and affection they might get back together. After the court passes the order for judicial separation for both the partners they no longer live together and all the marital obligations get suspended for a specific period. The judicial separation mostly results in either divorce or reconciliation of both partners. In judicial separation, the time given for both partners is to decide whether they are willing to continue their marriage or want to end the relationship. If they decide to end their relationship they can seek divorce. In judicial separation, either of the parties cannot remarry. If they remarry it will be an offense of bigamy. If either of one spouse dies in judicial separation the other spouse gets the property.
According to The Hindu Marriage Act 1955 under section 10 it provides judicial separation for the partners. And also states that the grounds which are present under section 13(1) of The Hindu Marriage Act 1955 can be taken for the judicial separation of both partners.
Body
- Grounds for judicial separation
The grounds for judicial separation are present under sections 13(1) and 13(2) under The Hindu Marriage Act of 1955. These are the circumstances under which either husband or wife can seek a judicial separation without having a divorce. The grounds are: –
Adultery: If either of the partners has voluntary sexual intercourse with another person outside of the marriage are eligible for having a judicial separation.
As in the case of Dr. H.T. Vira Reddi v. Kistamma (1968). The wife was engaged in sexual intercourse with another person. Thus the court ordered the judicial separation of the husband and wife. The court stated that even a single act of infidelity by either of the partners is sufficient ground for seeking judicial separation.
Cruelty: The definition of cruelty in marriage and legal cruelty is different as in the case of G.V.N. Kaeswara Rao v. G. Jalli (2002). The court tried to define cruelty as an act in which either of the parties intends to cause suffering to the other party. This is also a legal ground to seek judicial separation.
Desertion: If either of the partners completely abandons his or her marital responsibilities without giving a valid reason and without having any consent is the legal ground for which either of the parties can seek judicial separation.
Conversion: If either of the partners forces the other partner to convert to their religion without having any consent from the other partner, it is a legal ground to seek judicial separation. As in the case Vilayat Raj v. Smt. Sunila (1983). The husband converted his religion to Islam and tried to dissolve the marriage. The court stated that just by converting the religion the marriage cannot be dissolved there are legal grounds that need to be fulfilled for the dissolution of the marriage.
Insanity: If either of the partners is suffering from a mental disorder that is not curable or a partner is suffering from a mental disorder because of which the other partner is having difficulties living. Then this is a legal ground to seek judicial separation for both partners.
Venereal diseases: If either of the partners is suffering from venereal diseases (i.e. sexually transmitted diseases)then the partner can seek judicial separation.
Renunciation: Either the party has renounced the world with words by entering into spiritual life or seeking enlightenment is a legal ground for seeking judicial separation for both partners.
Presumption of not being alive: If either of the partners has gone missing for the time of seven years it is presumed that the partner has passed away. Thus it is a legal ground for seeking judicial separation.
- Grounds for judicial separation specifically for wife
As grounds are present for seeking judicial separation for both husband and wife. But there are some situations where the wife needs protection from harmful marriages. As historically in marriages husbands are favored and wives get burdened. Thus, for seeking judicial separation, the wife has some more specific grounds. The grounds are:
Rape, sodomy, bestiality: If the husband is found guilty of any of these offenses then the wife can seek judicial separation from the court.
Repudiation of marriage: If the marriage has taken place when the girl is under the age of 15. If she rejects the marriage after turning 15 and before 18 years of age the wife can seek judicial separation from the court.
These are the grounds for only the wife to seek judicial separation from the court.
- Difference between judicial separation and divorce
Divorce is a commonly known topic in society. Many people in society find judicial separation similar to divorce. But both concepts have different meanings. The difference between divorce and judicial separation is that for filing a petition in divorce people have to approach section 10 of The Hindu Marriage Act of 1955. And under section 13 people can seek judicial separation from the court. Divorce brings an end to the marital relationship of both parties. Whereas the judicial separation does not terminate the marital between both parties. For seeking divorce the parties have to complete one year of marriage. But in judicial separation, the parties can file anytime post-marriage. As in divorce, there is an end to marital relations; both husband and wife can remarry. But in judicial separation, there is no remarriage of parties because there is no end to marital relations. These are the basic differences that a person should know. As it will help people to know better which is better for their marital relation.
Conclusion
In society, people often choose divorce for their resolution of conflicts. But giving another chance to their marital relationship is a positive step a couple can take. There are positive views for seeking judicial separation. If in a marital relationship, a husband and wife have children of their own then first going for a judicial separation can give hope to their relationship to get better with the love and affection that they will gain by having space for themselves for a time. As in this, the child’s mental health needs to be taken care of. After seeking divorce the duties of both husband and wife get dissolved. But it affects the child no matter where the custody of the child goes it will still affect his mental health. Whereas a judicial separation gives time for both husband and wife to rethink their marital relationship and what are the ways they can make their relationship better. If with the help of the separation period, the marital relationship can be saved then it is the best option a couple should approach before deciding to seek divorce. Even after seeking judicial separation either of the partners is not willing to give a chance to their marriage as per their reasons (eg: there might be a threat or difficulty to the wife in living with the partner) then judicial separation gives a chance whether the situations can change if it does not change then a couple can seek for divorce. Judicial separation is better than divorce as if the couple wants to be together then the order can be revoked by the court easily. Thus there are many advantages for judicial separation for the people who are hoping to save their marriage.
References
- The Hindu Marriage Act 1955
- This article was originally written by Anupama and published on the Legal Service India website. The link for the same is herein
https://www.legalserviceindia.com/legal/article-5616-judicial-separation.html
- This article was originally written by law bhoomi and published on the Law Bhoomi website. The link for the same is herein
- This article was originally written by dhrishti judiciary and published on the website dhrishti judiciary. The link for the same is herein.
https://www.drishtijudiciary.com/to-the-point/ttp-hindu-law/judicial-separation
- This article was originally written by India law offices and published on the India law offices website. The link for same is herein.
https://www.indialawoffices.com/knowledge-centre/judicial-separation
- This article was originally written by Vidhikarya and published on the Vidhikarya website. The link for same is herein.
- This article was originally written by Kimberlee Leonard and published on the website Forbes Advisor. The link for same is herein.
- Dr. H.T. Vira Reddi v. Kistamma (1968).
- G.V.N. Kaeswara Rao v. G. Jalli (2002).
- Vilayat Raj v. Smt. Sunila (1983).