Family Law- I (Hindu Law)

TOPIC: Judicial Separation

Submitted by
Shashank Shekhar Bhatt
Roll Number: 27
B.A. LL.B.
Batch: 2014-19
Semester V
Of Law School,
Banaras Hindu University, Varanasi.

In
November, 2016

Under the guidance of

Dr. A.K. Maurya

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 ACKNOWLEDGEMENT

I would like to take this opportunity to express my sincere and profound

gratitude to my guide and mentor for this subject Prof. D.K. Sharma and Dr.
A.K. Maurya for their guidance and constant encouragement throughout the
course of my work. They gladly accepted all the pains in going through my
work, and participated in enlightening and motivating discussions, which
were extremely helpful.

Thanking You.

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Contents
ACKNOWLEDGEMENT................................................................................................. 2
Introduction:............................................................................................................... 4
Object of Section 10:.................................................................................................. 5
Applicability- Valid Marriage Necessary:.....................................................................6
Not subject to section 14:....................................................................................... 7
Handled by Section 23:........................................................................................... 7
Grounds for Judicial Separation:.................................................................................8
Effect of the decree:................................................................................................. 11
Sub-section (2)......................................................................................................... 12
Differences between divorce and judicial separation:..............................................13
Conclusion:............................................................................................................... 14
Bibliography:............................................................................................................ 15

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Introduction:

Judicial separation is an instrument devised under law to afford some time

for introspection to both the parties to a troubled marriage. Law allows an
opportunity to both the husband and the wife to think about the continuance
of their relationship while at the same time directing them to live separate,
thus allowing them the much needed space and independence to choose
their path.
Judicial separation is a sort of a last resort before the actual legal break up of
marriage i.e. divorce. The reason for the presence of such a provision under
Hindu Marriage Act is the anxiety of the legislature that the tensions and
wear and tear of everyday life and the strain of living together do not result
in abrupt break up of a marital relationship. There is no effect of a decree
for judicial separation on the subsistence and continuance of the legal
relationship of marriage as such between the parties. The effect however is
on their co-habitation. Once a decree for judicial separation is passed, a
husband or a wife, whosoever has approached the court, is under no
obligation to live with his / her spouse.

The section 10 declares the right of either spouse to marriage for obtaining
the judicial separation and provides the procedure for the same. Under Hindu
Law though this remedy for obtaining judicial separation was unknown, the
courts of British India by their pronouncements established that a suit for
judicial separation is maintainable on certain grounds. As a consequence the
Indian Divorce Act, 1869 was passed and was made applicable to all
communities in the country. This provision is a statutory recognition of the
right to judicial separation among Hindus. This section underwent a radical

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change so far as sub-section (1) is concerned by reason of section 4 of the
Marriage Laws (Amendment) Act of 1976.

After amendment, section 10 states that either party to the marriage

whether solemnized before or after the commencement of this Act may
present a petition praying for a decree for judicial separation on any 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 of divorce can be presented. Thus the scope of obtaining judicial
separation was enlarged by providing several grounds in section 13(1) and
(2) which are intended for obtaining divorce [though sub-clause (2) of section
13 provides certain grounds which are exclusively available only to wife.]

Object of Section 10:

The object of this provision is mainly to give time to the spouses for rapprochement
and reconciliation. The main function of the matrimonial reliefs is to offer protection
to the innocent party and getting marriage dissolved when it has for all practical
purposes broken down, so that its normal continuance without its essential
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attributes may not appear a blot on the institutions of marriage.

When the grounds are the same both for obtaining judicial separation as well as for
divorce one may feel this provision is redundant but some spouses may not be
willing to take a divorce as they may feel it a stigma to be divorced in a society. The
effect of an order under this section granting judicial separation is to permit spouses
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to live apart and to afford an opportunity to reconcile.

Sub-clause (2) provides that after obtaining a decree for judicial separation, it shall
no longer be obligatory for the petitioner to cohabit with the respondent. Section 13

1 Rukmini v. Narayana (1969) 2 Mys LJ 1.

2 Kaitha Kulengina Kutty Kannan v. Nellothamucethil Malar AIR 1973 Ker 273.

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(1A) (i) makes a provision for obtaining a divorce where there has been no
resumption of cohabitation between the parties for a period of one year or upwards
after the decree for judicial separation. The one year period contemplated is to
enable the parties for rapprochement and reconciliation. Thus the doctrine of locus
poenitentiae is impliedly made applicable by providing in this section for judicial
separation though on the same grounds divorce can be obtained under section 13
of this Act.

Applicability- Valid Marriage Necessary:

For the application of this section a valid subsisting marriage between the parties is
necessary, just as in the case of restitution of conjugal rights under section 9 (see
cases under the head Valid Marriage under section 9). Where the relationship of
marriage is denied, the factum of the marriage and its solemnization has to be
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proved by the petitioner.

After the commencement of this Act no custom or law contrary to the provision in
the sections 10 and 13 which prescribed for judicial separation and divorce can be
considered under this Act except to the extent saved by section 29, clause (2) of
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this Act.

Where wife attempted to commit suicide in state of pregnancy without giving any
specific reason or cause and she also filed criminal complaints against the husband
and his relatives for that no incriminating material was found against them during
the investigation as these implication were with vengeance to cause harassment to

3 Khiteswar Phukan v. Sowala Gogoi AIR 1991 Gau61.

4 1977 All Cr R 157.

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them. Hence, such acts of wife would amount mental cruelty on husband and held
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him entitled of decree of judicial separation.

Where husband filed petition for judicial separation on ground of cruelty by wife,
who is a teacher of a primary school situated nearby the house of her parents and
she may spend some time at the house of her parents after school hours. Therefore,
it does not amount to cruelty towards husband. Another instance that wife became
a witness against her husband and his sister in a criminal case under section 498A
of the Indian Penal Code where wife of elder brother of husband filed the said
criminal case before the Police/ Statement made by the wife before the Police
authority is not produced. Therefore it cannot be said that wife intended to send her
husband to jail and her action does not tantamount to cruelty against her husband. 6

Not subject to section 14:

The proceeding under this section is not subject to section 14 whereas a proceeding
under section 13 is subject to the provision of section 14 which states that
notwithstanding anything contained in this Act it shall not be competent for any
court to entertain any petition for dissolution of marriage by a decree of divorce
unless at the time of presentation of the petition one year has elapsed except in the
cases where there is exceptional hardship to the petitioner or exceptional depravity
on the part of the respondent.

Handled by Section 23:

Section 10 is controlled by section 23 of this Act which empowers the court to pass
a decree only when it is satisfied that none of the grounds mentioned in section 23

5 Nitu Aggarwal v. Gireesh Gupta AIR 2011 Del. 101.

6 Shampa Mukherjee v. Pranab Mukherjee AIR 2010 (NOC) 223 (Cal).

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exist. The only rider is the interdict of section 23 as pointed in Dastane v. Dasatane.
The court has been conferred power and vast discretion to pass an order of judicial
separation under the newly added section 13 A by the Marriage Law (Amendment)
Act, 1976, even in cases filed for divorce under section 13 on any of the grounds
mentioned therein except in cases which are filed on grounds of conversion to
another religion or renouncing the world by entering any religious order or not
having been heard of as alive for a period of seven years or more. If the court is
satisfied on the facts and circumstances of the case that there is chance of
reconciliation in course of time it ay grant a decree of judicial separation in an
application for divorce. Before adding the new section 13 A in 1976, it was held that
when divorce was sought on the grounds of bestiality which is not proved , judicial
separation cannot be granted on the ground of cruelty as the two reliefs and the
grounds there of are entirely different.
however the Mdras High Court held that the appellate court can grant a lesser relief
of judicial separation.

Before a court passes an order under this section it should make an assessment in a
true spirit understanding, human nature and human affairs. The picture of domestic
life of the spouses is to be surveyed as a whole before forming a judgment of their
possible future relations. Due regard to social customs and conditions of the parities
is also necessary.

Grounds for Judicial Separation:

The provision for judicial separation is contained in section 10 of the Hindu

Marriage Act, 1955. The section reads as under:
A decree for judicial separation can be sought on all those ground on which
decree for dissolution of marriage, i.e. divorce can be sought.

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Hence, judicial separation can be had on any of the following grounds:

1. Adultery
2. Cruelty
3. Desertion
4. Apostacy (Conversion of religion)
5. Insanity
6. Virulent and incurable form of leprosy
7. Venereal disease in a communicable form
8. Renunciation of world by entering any religious order
9. Has not been heard of as being alive for seven years

The wife is provided with four more grounds under sub-clause (2) of section
13 for purpose of divorce which again are the grounds for judicial separation
under section 10. Those grounds are:

1. Remarriage or earlier marriage of the husband but solemnised before

the commencement of Hindu Marriage Act, 1955, provided the other
wife is alive at the time of presentation of petition for judicial
separation by the petitioner wife.
2. Rape, sodomy or bestiality by the husband committed after the
solemnization of his marriage with the petitioner.
3. Non-resumption of co-habitation between the parties till at least one
year after an award of maintenance was made by any court against the
husband and in favour of the petitioner wife.

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 4. Solemnization of the petitioner wifes marriage with the respondent
husband before she had attained the age of 15 years provided she had
repudiated the marriage on attaining the age of 15 years but before
attaining the age of 18 years.

It is on all the above grounds that judicial separation can be sought. The first
9 grounds are available to both the husband and the wife but the last four
grounds are available only to the wife. It is to be noted that it is on these
grounds that divorce is also to be granted. All the above grounds are now,
i.e. after the amendment of 1976 available for obtaining judicial separation
under the section, through those grounds are not specifically given in the
section.7 It has been held that unless a case for divorce is made out, the
question of granting judicial separation does not arise. Therefore, the Courts
while dealing with the applications for judicial separation shall bear in mind
the specific grounds raised for grant of relief claimed and insist on strict
proof to establish those grounds and shall not grant some relief or the other
as a matter of course. Thus on a petition for divorce, the Court has discretion
in respect of the grounds for divorce other than those mentioned 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.
Another question that arises is of decree of maintenance vis--vis decree for
judicial separation. Where a decree for judicial separation was obtained by
the husband against her wife who had deserted him, the wife not being of
unchaste character nor her conduct being flagrantly vicious, the order of
alimony made in favour of the wife was not interfered with by the Court.

7 Srikanta Rangacharya v. Anuradha AIR 1980 Kant 8.

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ILR (1964) 2 Punj 732.

The Punjab and Haryana High Court has also held that a reading of sec 24
and 26 (maintenance) does not show that if a petition under section 9, 10 12
or 13 is disposed of, the jurisdiction of the court to award maintenance
pendent lite by an order to be passed is taken away.
AIR 1981 Punj 305 ; 1981 Hindu LR 345
The above decisions go on to show that even where a decree for judicial
separation is passed in favour of the husband, maintenance may still be
awarded to a wife and judicial separation is no defence to a claim for
maintenance under Hindu Marriage Act.

Though section 10 of the Hindu Marriage Act does not provide any time as to
how long judicial separation can last. But section 13 of the Act provides that
if there is no resumption of co-habitation between the parties one year after
the decree for judicial separation is passed, the parties can get a decree for
divorce on this ground itself. But divorce on this ground will be given only
when one year has expired after the passing of the decree for judicial
separation and not earlier. The reason for this is that one year is a long
period and it provides sufficient time to the parties for reconciliation or to
arrive at a decision. If the parties fail to overcome their differences within
this period, then there is no fun in allowing the legality of the marriage to
just linger on when in substance the relationship of marriage has long
expired.
It is to be noted, however, that if the parties do agree to resume co-
habitation any time after the passing of the decree for judicial separation,
they can get the decree rescinded by applying to the court. The Act does not
refer to any specific grounds on which a decree for judicial separation can be
annulled or rescinded. Section 10(2) however, empowers the Court to rescind
the decree for judicial separation if it considers it just and reasonable to do
so. However Courts have repeatedly warned that this power of rescission has

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to be exercised with great circumspection and not in a hurry and only after
satisfying themselves that it would be just and reasonable to allow such
rescission.
When the hisband was deprived of the company of his wife for two and half
years for no fault of his, it was held that it indicated the disruption of the
marriage itself and there was no sense in allowing the marriage to survic=ve
when the marriage itself has lost its meaning for both the spouses.8

A wife is entitles to a decree for judicial separation where the husband is

living with another woman and is cruel to his wife.9 The husbands petition
for judicial separation on the ground of his staying away from his wife owing
to her cruel and indecent behaviors, the want to substantiate the allegation
of cruelty disentitled the husband for judicial separation.10 In case of adultery
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even one act is enough for granting of decree for judicial separation.

In the instant case, though the parties were highly educated the defendant
was languishing in the orthodoxy. Thus the plaintiff had every reason to leave
the defendant or her matrimonial home as the circumstances created by the
defendant were such that forced her to leave.

Effect of the decree:

Judicial separation under this section does not put an end to marital relationship but
it is no longer obligatory for the petitioner to cohabit with the respondent. After
obtaining the decree neither spouse can contract another marriage or indulge in
adulterous acts until a divorce is obtained under section 13. If either spouse marries

8 Ratneshwar Mishra v. Prem Lata Devi (1987) 1 HLR 255 (Pat.)

9 Devanti Devi v. Rupan Tanty AIR 2005 Jhar 49: 2005 (2) HLR 56 (Jhar)

10 Gopal Chandra Mallick v. Manjari Mallick AIR 2004 Jhar 104.

11 Laxman Naik v. Nalita, II (2003) DMC 275 (On)

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during that period i.e. after obtaining order of judicial separation and before
obtaining divorce, he or she would be liable for the offence of bigamy. The order for
judicial separation is no bar to the court granting maintenance, as the relationship
of wife and husband continues, till they obtain divorce. Dismissal of a petition by the
wife under this section bars an application for maintenance under section 488 of old
CrPC or section 125 of CrPC per se is not sufficient to grant a decree for judicial
separation. A decree in a suit for maintenance by the wife against the husband does
not operate as res judicata in an application by the husband for judicial separation
under this Act. On the other hand decree passed in proceedings under this Act are
judgments in rem.

It is not legal for a court to grant a decree for judicial separation only for specified
period. If the court comes to the conclusion that there are sufficient grounds to
grant judicial separation, it shall grant judicial separation, it has to dismiss the
petition for judicial separation.

Where marriage between the parties were solemnized in temple without any fun-
fare and as per the husband himself, none of the family member of the wife were
present in marriag, obviously, it had been a matter where the wife had an
inclination towards the husband and entered into the matrimony of her own and yet
the family of wife did organize a reception. It was very difficult to accept that
immediately after marrieage the wife would have made a vague demand of 10-15
tolas of gold and would have hurled abuses on the husband and his mother with
such demand. Thus allegation against the wife of her making such a demand did not
fit in the normal course of conduct in society parties belonged to. They were not
compatible with surrounding aspect that the entered into matrimony with the
husband of her own. Allegations were rather sketchy, implausible and pretentious.
Nothing specific was placed and proved on record by the husband wherefrom a
definite finding about baseless quarrels and thereby cruelty of conduct could be
reached against the wife. The prescription slip did not prove allegations relating to
wife aborting pregnancy without consent of the husband. The wife asserted in her
cross-examination that mother of the husband was with her at the time of
termination of pregnancy. Hence, the husband is not entitled to a decree of judicial
separation.

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Sub-section (2)

This sub-section consists of two parts. The first part states that any party to a
decree for judicial separation shall not be under any obligation to cohabit with the
other. It follows impliedly that if there was no cohabitation for a period of one year
or more from the date of decree of judicial separation either party can apply for a
divorce under section 13 (1A) (i). The other part of this sub-section enables either
party to apply by a petition to have the decree rescinded. This later part of the
clause is similar to section 26 of the Indian Divorce Act, 1869. Under the Divorce Act
grounds are given on which the ddecree can be rescinded but in sub-section (2) no
such ground is given. The court has ample discretion to rescind the decree provided
it is satisfied with the grounds mentioned for recission and considers it just and
reasonable to do so.

Differences between divorce and judicial separation:

The procedure for defended and undefended judicial separation proceedings is

broadly similar to that of defended and undefended divorce proceedings. However,
there are some differences between divorce and judicial separation as follows:-

1. As stated above judicial separation, unlike divorce, does not bring about a
termination of the marriage and the parties will remain married to one
another.

2. In judicial separation proceedings the court does not have to consider

whether the marriage has irretrievably broken down whereas it must do so
when a petition for divorce is presented.

3. Judicial separation can be applied for at any time after the marriage, whereas
a divorce petition cannot be filed until after the expiry of one year from the
date of the marriage.

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 4. In stark contrast to a divorce, there is only one stage to the decree of judicial
separation, whereas in a divorce there is a two-stage process of decree nisi
followed by decree absolute. In judicial separation there is no requirement for
a decree nisi to be pronounced in the first instance and, instead, the decree
will simply be the final decree of judicial separation.

5. Certain provisions of the Matrimonial Causes Act 1973 as applied to divorce

do not apply to judicial separation petitions when dealing with cases relying
on two or five years separation.

6. Judicial separation does not affect existing Wills. Where a decree of judicial
separation has been granted and the parties remain separated, if either dies
intestate, his or her property will devolve as if the other spouse was already
dead, so the surviving spouse will not benefit. If you are involved in judicial
separation proceedings, or are considering this option, you should obtain
advice from a specialist solicitor as to preparing a Will or amending an
existing Will and the team here at Anthony Gold are well-equipped to help.

7. Whilst an application for financial remedies may be applied for in judicial

separation in the same way as divorce, the courts powers are somewhat
more restricted. For example, the court cannot make a pension sharing order
upon judicial separation only a pension attachment order which is more
limited.

Conclusion:

Judicial separation is a newer concept than that of divorce. Even though Hindu law
has never inculcated any sort of means which would nullify a marriage but in this
ever evolving world, the practical demand has given a way out with judicial
separation for couples whose relations are strained and are not working anymore.
With many lives of individuals affected by temporary problems and strains, judicial
separation is a much better way to give time to relationship than having an abrupt
end in form of divorce.

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Ending a marriage in Hinduism is looked down upon and in our society judicial
separation can proved to be a much better way to work out differences.

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Bibliography:

Agarwala R.K. - Hindu Law, 21st edn. 2003, Central Law Agency,
Allahabad.
B.M. Gandhi- Hindu Law, 3rd edn. 2008, Eastern Book Company,
Lucknow.
Dr. Paras Diwan on Hindu Law, 2nd edn. 2005, Orient Publishing
Company, Allahaabad.

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