Judicial Separation And Divorce Under Hindu Marriage Law | Grounds Of Divorce And Judicial Separation

30 September, 2022

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Introduction:

Before Diving deep into the concept of judicial separation and divorce the elementary understanding of marriage is vital since time immemorial marriage has been the greatest and most significant of all institutions in human society. Marriage is an inviolable union. The shastric Hindu law considers marriage as one of the essential sanskars formed on the basis of traditions and customs. The Hindu religion has always considered marriage a sacramental relationship that cannot be dissolved. As per the Vedas “Dharma must be practiced by man together with his wife and offspring”.

The Manu smriti, says that for a Hindu Man to get married, he needs to find a faithful woman from his own caste. It correspondingly mentions that marriage cannot be dissolved by a man or a woman. The above instances reflect a firm belief in the institution of marriage.

Prior to 1955, there was no mention of putting an end to a marriage, parties had to stay together in all settings and circumstances. With the prevailing conditions and changes the need to end a marriage instead of compromise grew. Then the Marriage Laws (Amendment) Act, 1976, created the grounds for divorce and for judicial separation as mentioned in section 10 of the Hindu marriage, act 1955.

Judicial Separation:

As per the Modern laws if a person wants to step out of a marriage and doesn’t want to extend the same then he may request relief under the Hindu marriage act, 1955. Spouses married under the Hindu marriage act 1955 are entitled to claim the relief of judicial separation, it is referred as, A legal procedure where the married couple lawfully split up or separates despite of being married.

When a marriage is unable to coexist peacefully and without conflict due to domestic abuse, judicial separation is utilised as a remedy. Additionally used as a quick fix to settle family conflicts outside of the legal system. Protecting the concerned children's well-being and preserving the family's unity are the goals of this separation.

The separation here is lawfully sanctioned by the court. The cause of judicial separation can be for the reason that the spouses have conflicting differences and their incompatibility. A time for self-analysis and rethinking is given to the parties before concluding the matters.

Section 10 of the Hindu Marriage Act, 1955 offers the Judicial Separation for:

Both the spouse,
The ones married under the Hindu marriage act may put forward a petition for a declaration for judicial separation on any of the grounds specified in sub-section (1) of Section 13,
and in the respect of a wife also on any of the grounds specified in sub-section (2).

Also Read: Alimony in Divorce: Right Of Women

Divorce:

In the opinion of Arthashastra, there can be an end to a marriage if dissolved by mutual consent and must be unapproved marriage. Contrary to what Manu taught. But the concept of divorce prevailed and was established as a practice to put an end to the marriage. A Marriage can break on various grounds like matrimonial offences, oppression of one party on the other and When parties want to dissolve the marriage mutually.

Section 13 in The Hindu Marriage Act, 1955 explains;

While Section 13's Clause 1 outlines the general grounds for divorce that either party in a broken marriage may pursue,
Section 13's Clause 1-A, which was added to the Act of 1955 by the Hindu Marriage (Amendment) Act of 1964, lists two additional reasons for getting a divorce judgement.
Only the woman may obtain a divorce under the four grounds that are clearly listed in Clause 2 of Section 13.

The Supreme court in the case of Munish Kakkar v. Nidhi Kakkar, (2020) dissolved the marriage while exercising its jurisdiction underneath Article 142 of the Constitution of India (discretionary power to the Supreme Court), for the reason that marriage was “emotionally dead”.

After one year from the day the judicial separation decision was made, a spouse may seek for divorce if the couple has not resumed living together.
The resumption of cohabitation simply means that two people are once again living together under amicable circumstances. The court would award a divorce order under Section 13 if there is no bar as described in Section 23 of the Hindu Marriage Act, 1955. (1A).
Resuming marital responsibilities is necessary to reclaim conjugal rights. Either spouse may petition for divorce if there hasn't been a restoration of conjugal rights for a year following the issuance of a decree under Section 9 of the Act.

Filing petition for Judicial Separation:

A judicial separation petition can be filled by any the spouses in a district court under Section 10 of the Hindu Marriage Act, 1955.

All the petitions must be according to Order VII Rule 1 of the Civil Procedure Code, 1973 it is essential for every petition to contain:

The date of marriage and the place where it was solemnised
The person must be a Hindu, by their affidavit.
Name and addresses of both the parties must be mentioned
In case of children, their Name, DOB and gender.
Details of litigation filed previously filing the decree for judicial separation or divorce.
There should be strong evidence to prove the grounds for the judicial separation,

Also Read: What is the Doctrine of Prospective Overruling - Jurisprudence

Who can file a petition against the Hindu Marriage Act under Section 10?

Any couple who has solemnised their marriage union in accordance with Hindu tradition.
A petition for judicial separation under Section 10 may be filed in a District Court by any spouse who feels aggrieved.
One can file for judicial separation at any point during your marriage.

How to file a suit for judicial separation or divorce?

Parties can file the divorce petition at the family court which is in the jurisdiction of the matrimonial house. It can also be filled at the family court where the marriage took place. Women can file the petition in the family court of where she is residing at the period of filing of the petition.

In case of contested divorce (one party wants a divorce but the other party does not) can be filed too:

Preparation for the petition: The party seeking divorce would have to elucidate the facts and pieces of evidence. A lawyer has to be engaged; a petition has to be prepared by him. Further, the petition with affidavits and Vakalat Nama would be signed by the party filling for divorce, in the presence of a Notary/commissioner.
Filing of the Petition: Depending upon the jurisdiction the petition is filled.
Analysis of the Petition by Court: The court would analyse the case on the first hearing and listen to the grounds of divorce from the lawyer of the party filing the petition.
Further, if the court is satisfied the opposite party appears matter moves ahead, opposite party would also file for a reply. Initially court would resolve the matter, if mediation is not leading to any desired results then the divorce proceedings move ahead.

In case of Mutual divorce (both the parties want divorce) can be filed:

Both spouses may file a joint petition for the dissolution of their marriage and divorce only in a family court on the grounds that they have been living apart for at least a year or that they are unable to cohabitate and have jointly decided to end their marriage.
Both parties must agree to sign this petition. Further parties will have to appear before the family court after the filing of the petition.

Grounds of divorce and judicial separation:

As per the Hindu Marriage Act,1955 following are the grounds for Judicial Separation and Divorce in India:

Cruelty - One of the spouses are cruel or both are equally cruel towards each other. Cruelty includes both mental and physical.
- In the case of Samar Ghosh v. Jaya Ghosh, the Supreme Court of India listed out illustrations which show mental cruelty.
Desertion - when either of the spouses voluntarily abandons the other spouse for at least a period of two years. Here the alleging party must not only prove that the other spouse was living separately but Animus deserendi, i.e., intention to desert permanently.
- The Supreme Court in the case of Lachman Utamchand Kiriplani v. Meena alias Mota, AIR 1964, held that desertion may not be physical it can be in the form of virtual separation. When the spouses may be living under the same roof but then not fulfilling the matrimonial obligation.
Adultery- It is defined under section 13 (1) of the Hindu marriage act. When Either of the spouses is voluntarily indulging into an affair with another individual. Adultery was presented as a ground by the Marriage Laws Amendment Act, 1976.
The two ingredients of adultery:
- An act of sexual intercourse with another individual.
- The act must take place voluntarily.
Forced conversion of religion- If without the information either of the spouses change their religion or when one spouse is obliging the other to convert his/her religion.
- In the case of Teesta Chatto raj vs Union of India, the learned court held that Conversion by a spouse is a ground for divorce, but a spouse may be denied divorce even if the other spouse has embraced some other religion if the former goaded the latter to such conversion.
- Leprosy - Leprosy is a ground for divorce as well as judicial separation. For divorce it is under Section (1)(iv) of the Hindu Marriage Act, 1955, Leprosy must be in the form of Virulent and Incurable
Venereal diseases -The Hindu Marriage Act of 1955, Section 13(V), offers grounds for divorce due to infectious venereal disease. One of the spouses could be suffering from sexual diseases such as HIV, Genital Herpes and AIDS etc.
Insanity or abnormality – Insanity is a strong ground for divorce it has two essentials: For an indefinite period, the respondent was mentally ill. The disease makes it difficult for the other spouse to live.
Renunciation of the world this ground is based on religious or spiritual grounds. Either of the spouse has renounced the world.
Child marriage – This ground is for the spouses married before the age of 18 years of age.
Presumed to be dead – If a spouse has not been heard of as being alive for seven years not only by family but in the known society if that spouse is not alive then that party is presumed to have died.

Wife special grounds for Divorce:

Section 13(2) of the Hindu Marriage Act, 1955 provides these special grounds for the These grounds are explained:

Bigamy- When the husband has a wife and he marries another woman giving effect to Hindu marriage act 1955 either of the man’s two wives can file for divorce. The wife should be alive when the petition for divorce is being filled.
Rape, sodomy or bestiality- Here the wife can file for divorce if her husband has committed the offence of rape, sodomy, or bestiality since the marriage was solemnised.
- As rape is a criminal offence under the Indian penal code.
- Sodomy and Bestiality – When a person who has sexual intercourse through mouth with an individual of the same sex or an animal, or non-coital carnal copulation with some other person of the opposite gender.

Differences between judicial separation and divorce:

The Delhi high court observed: “Judicial separation and divorce are completely different reliefs– granted on the same grounds–as contained in Section 13 (1), and in the case of a wife, also on any of the grounds specified in sub-Section (2) of Section 13 of the Hindu Marriage Act,1955.”

Following are the grounds for the distinction between judicial separation and divorce:

Definition: Section 10 of the HMA, 1955 defines Judicial separation. Under section 13 of the act, divorce is mentioned
Time: In judicial separation, a petition can be filled any time post-marriage. For divorce, it can be filled after at least a year of marriage.
Stage of judgment: In case of judicial separation only if grounds are satisfied then the decree be granted. In case of a divorce, there are two steps first is reconciliation or mediation, if the same is not possible then divorce.
Marital status: in judicial separation, there is a temporary suspension of marriage, a divorce means an end to a marriage.
Scope of remarriage: One cannot remarry in a judicial separation. After divorce parties can remarry.
Reconciliation: In judicial separation, there are chances for reconciliation. There are no chances for reconciliation as marriage has ended.

Also Check: Irretrievable Breakdown of Marriage

Conclusion:

There wasn't any provision for divorce or separation prior to 1955. The government has introduced improvements to the Hindu Law through legislation and amendments. By giving the parties a chance to work out their differences or by releasing them from their marital obligations. Thus, judicial separation is an effective procedure in which the Court gives a divorcing couple one more chance to try and work out their issues by living separately before starting divorce proceedings. This allows the pair to reflect and work through their marital conflicts and misunderstandings. Divorce on the other hand offers hope for new and fresh beginnings and helps in reducing domestic violence and other related crimes.

1. Is judicial separation the same as divorce?

“Judicial separation and divorce are completely different reliefs– granted on the same grounds–as contained in Section 13 (1), and in the case of a wife, also on any of the grounds specified in sub-Section (2) of Section 13 of the Hindu Marriage Act,1955.”

2. How long does a judicial separation last?

It is a period of separation mandated by the court before the divorce proceedings can be started. Under all personal laws, the judicial separation period is for one year. Under Indian Divorce Act 1869, the period of judicial separation is two years.