Judicial Separation Under the Hindu Marriage Act

In Indian culture, marriage is considered as a ritual. It is an unchangeable union between a husband and a wife formed by traditions and customs. Earlier in the mid 90s or early 90s, there were no solutions to solve a broken marriage but rather just to endure it in the name of ‘responsibilities’. According to Manu, they cannot distinguish husband and wife from one another, their martial tie cannot be severed. Nonetheless, as per the Arthasashtra, marriage may be terminated or revoked if done by mutual consent, to which the Manu does not really take into cognizance about the concept of termination of the marriage. According to Manu the quietus of one of the partners is the only dissolution of marriage. Finally, by the Hindu Marriage Act, 1955 the concept of ‘divorce’ was given a provision. Divorce has been stated as the dissolution of marriage by the act. The marital relation or the marriage itself must be covered by some protection for the purpose stated by the law’s interest. Divorce is accorded only for some serious reason or other alternatives. As of now, neither of the parties have to confine themselves to the broken marriage and can terminate it with mutual consent simply by judicial separation or divorce decree.

Concept of Judicial Separation under Hindu Marriage Act, 1955

In India, the courts of law never really impel divorce on the parties the very first time they approach the court. As marriage is taken to be the purest union and a sacramental relationship, and to easily dissolute the same the courts of India have created the concept of judicial separation that gives both the sides to a weary marriage some time for introspection, so that the dissolution of marriage by means of divorce may be prevented. Section 10 of the Hindu Marriage Act, 1955 deals with Judicial Separation.

The act states “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 in the case of a wife also on any of the grounds specified in sub-section (2) thereof, as grounds on which a petition for divorce might have been presented.” 

The Hindu Marriage Act, 1955

Filling of a petition for Judicial Separation

Under Section 10 of the Hindu Marriage Act, 1955, any partner in the marriage who is harmed by the other partner may file a petition for Judicial Separation before the Honorable District Judge fulfilling the requirements.

• Marriage between a husband and a wife must be fully observed under the Hindu Marriage Act, 1955.
• The respondent should be resolved in the jurisdiction of the court where the petitioner lodged the complaint.
• The husband and the wife must stay jointly for a specific period before the claim was filed.

There is no space for an explanation of divorce under the Muslim Law since the nature of the marriage is contractual, unlike the Hindu marriage which is considered as a union of two souls.

Procedure to file a suit for judicial separation or divorce

According to Order VII and Rule 1 of the Civil Procedure Code, there are three key parts of a petition for judicial separation or divorce. They are as follows:

• Date and place of marriage
• Affidavit of being a Hindu by both the person to the petition.
• Name, Status and Resident of both wife and husband.

In case of cases where adultery has been committed, the party apart from the adultery must provide photographs of facts that the individual has some extramarital affair. The grounds for the judicial separation or divorce as per the Hindu Marriage Act, 1955  are adultery, cruelty, desertion, conversion, insanity, leprosy, venereal disease, renunciation, the presumption of death, and mutual consent.

Special Grounds for wife in Judicial Separation

Bigamy

Mentioned u/s 13(2)(i) of the Act which impels that if the husband is remarried to someone else outside the marriage, both the wives here are entitled to receive the request for judicial separation on assumption, that, during the course of lodging, the other wife is still alive.

Rape, Sodomy or Bestiality

A divorce or a judicial separation can be submitted u/s 13(2)(ii) if the husband has been accused of rape, sodomy or bestiality after the solemnization of marriage. Rape is a well versed term which is understood by all. Sodomy and Bestiality have been considered as crimes against nature as sodomy refers to anal or oral intercourse whereas Bestiality refers to an intercourse with an animal. Three of the aforementioned is an additional grounds for the wife to claim judicial separation or divorce.

Repudiation of Marriage

This provision offers the wife a rationale for divorce or judicial separation because the marriage was solemnized before she reached 15 years of age, and the marriage was reprimanded before she reached 18 years. 

Distinction between Judicial Separation and Divorce

Conclusion

The Hindu Marriage Act, 1955 has provided various rules for separation and divorce by specifying that divorce is the dissolution of the marriage. Fault Theory, Mutual Consent and Irretrievable Theory are three primary reasons with regard for divorce. In India, the concept of divorce is dealt with by the fault theory.  Holding this principle, if one of the parties to the marriage is liable for the crime under marital offence, the marriage may be dissolved freeing the other innocent partner to obtain divorce remedies. As per the Hindu Marriage Act, 1955 there have been various grounds for seeking a divorce or judicial separation. However, the grounds for both the issues are similar more or less providing certain additional grounds, especially for women.

Debashrita Manik

Law student.

Believes in penning down thoughts!