Introduction

• Judicial Separation under Hindu Law refers to a legal remedy available to a married couple governed by Hindu personal laws who wish to live separately without terminating their marriage.
  • Unlike divorce, which dissolves the marital bond, judicial separation allows the couple to live apart while still maintaining their marital status.
• This legal concept is significant because it provides an alternative to divorce for couples facing irreconcilable differences or problems within the marriage.
  • The provision of Judicial Separation is provided under Section 10 of the Hindu Marriage Act, 1955 (HMA).

Judicial Separation under S.10 of Hindu Marriage Act, 1955

• Section 10 - Judicial separation — (1) 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.

(2) Where a decree for judicial separation has been passed, it shall no longer be obligatory for the petitioner to cohabit with the respondent, but the court may, on the application by petition of either party and on being satisfied of the truth of the statements made in such petition, rescind the decree if it considers it just and reasonable to do so.

In simpler terms:

• • The husband or the wife can seek for the Judicial separation under Section 10 of the Hindu marriage Act.
  • The Separation can be claimed by filing the petition in the competent court for judicial separation.
  • The grounds for judicial separation grounds are 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).
  • Once the court passed the order for separation, the spouses are no longer bound to have cohabitation, and both are allowed to live separately.

Filing Petition for Judicial Separation

• As per Section 19 of HMA, a petition has to be filed in the District Court at any one of the following places, where:
  • The marriage was solemnized.
  • The respondent resides.
  • The parties to the marriage last resided together.
  • The petitioner resides under certain circumstances.

Grounds of Judicial Separation

• The grounds for divorce as given under Section 13(1) and 13(2) have been made the grounds for judicial separation while previously they were separate and different.
• Under Section 10 of HMA; either spouse can file a petition for judicial separation on the basis of the following grounds:
  • Adultery: Section 13(1)(i)
    • It means where any of the spouses voluntarily had sexual intercourse outside marriage.
    • Here, the aggrieved party can claim relief, only when the intercourse takes place after marriage.
  • Cruelty: Section13(1) (i-a)
    • When the spouse treats his/her partner with cruelty or inflicts any mental or physical pain after the marriage.
    • The sufferer can file a petition on the grounds of cruelty.
  • Desertion: Section13(1) (i-b)
    • It can be explained as where either spouse leaves the other spouse for any reason without informing him/her for a period of not less than 2 years before filing the petition by another spouse, desertion gives a right to claim relief of judicial separation for the aggrieved party.
  • Unsound Mind: Section 13(1)(iii)
    • If any spouse in a marriage is suffering from any mental disease which is difficult to live for the other spouse. Then such other spouse can claim relief of judicial separation.
  • Venereal Disease: Section 13(1)(v)
    • If any party to the marriage is suffering from a disease which is incurable and communicable and the other spouse did not know about this fact at the time of marriage, then it could be a valid ground for the other spouse to file a petition for judicial separation.

Additional Grounds which can be Claimed Only by Wife

• Bigamy: Section 13(2)(i)
  • If the husband has remarried during the lifetime of his wife or was married before the commencement of this Act and such other wife is still alive at the time of the marriage. Then the aggreived wife can present a petition under this provision.
• Rape, sodomy or Bestiality: Section 13(2)(ii)
  • If the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality, a petition can be presented by the wife for a decree of Judicial Separation.
• Non-Resumption of Cohabitation after a Decree/Order of Maintenance: Section 13(2)(iii)
  • If a wife has received a maintenance order in proceedings pursuant to Section 125, Code of Criminal Procedure,1973 (CrPC) or a decree pursuant to Section 18, Hindu Adoption & Maintenance Act, 1956 (HAMA).
  • Cohabitation has not really been restored after 1 year or more after passing of such decree between the parties.
• Repudiation of marriage: Section 13(2)(iv)
  • If the marriage was solemnized before the female reaches the age of 15 years, such marriage can be repudiated by the wife before turning the age of 18 years.

Case Laws

• Subbarama Reddiar v. Sakaswathi Ammal (1966):
  • The Madras HC has exhaustively discussed about the nature and scope of Judicial Separation (on ground of adultery) and has observed that on grounds specified under Section 13 of the Hindu Marriage Act, 1955.
  • If a spouse seeks judicial separation the same may be granted when the petitioner spouse successfully proves the adulterous relation.
• Rohini Kumari v. Narendra Singh (1971):
  • The SC has held that in case where a spouse (here, the husband) deserts his partner, the aggrieved party may file a suit of judicial separation if she does not want to live with him. It was also held in this case that in case of judicial separation the wife becomes entitled to seek maintenance from her husband under both HMA and HAMA.

Difference between Judicial Separation and Divorce are as follows:

Conclusion

• Before 1955, there was no provision for separation or divorce. Reforms introduced in the Hindu Law by way of legislation and amendments is a welcome step.
• Judicial separation is a legal break in marriage granted by the court which later may convert into a patch up. The objective of the court to grant relief of judicial separation to the aggrieved party is to think about their relationship and give it another chance before divorce.