Judicial Separation under Hindu Law
Marriage is considered an everlasting bond or a sacred union between a man and a woman under Hindu law. This union comes with certain rights and obligations towards each other, one of them being cohabitation. In today’s world, individuals have also been given the right to live separately by applying for judicial separation, provided there is a valid reason to do the same. Judicial separation, unlike divorce, does not mean termination of a marriage. Instead, it means temporary revocation of the partners’ marital rights by judicial order, based on any of the grounds for divorce mentioned in the Hindu Marriage Act, 1956.
MEANING OF JUDICIAL SEPARATION
The concept of “judicial separation” has been adopted from the British theory called “Mensa et thoro”. In India, the concept was initially introduced in the Special Marriages Act and later in the Hindu Marriage Act, 1955. In 1976, the amendment act allowed for judicial separation to be passed on the grounds same as divorce. Since marriage is considered a sacred union under the Hindu religion, its termination, i.e. divorce, is not an easy procedure. Judicial separation is a legal instrument or remedy granted by the court to married couples seeking divorce to give the individuals time to reconsider the divorce. During this time, the parties of a troubled marriage get time for introspection and settlement of disputes by living separately, which give them the much needed time to think and choose their path. The parties have to give up their conjugal rights during this period to make a comprehensive decision. It is the last remedy available to both parties before the actual termination of their marriage. For availing this legal remedy, either party to a marriage 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. In Jeet Singh
GROUNDS FOR JUDICIAL SEPARATION
Both spouses can seek judicial separation on the grounds of divorce as stated under Article 13 of the Hindu Marriage Act, 1955. The various grounds for judicial separation are:
Suppose any of the spouses, after marriage, voluntarily choose to have sexual intercourse with any other person other than his/her spouse. In that case, he/she is said to have committed adultery.
The Act allows such spouses to file a plea of judicial separation or divorce in the court of law.
In Hirachand Srinivas Managaonkar v. Sunanda, the Supreme Court held that the court has the power to pass an order of judicial separation, or the petitioner can apply for a divorce on the ground of adultery if determined or proven with evidence.
In Revathi v. Union of India and Ors., the Court held that “if any of the spouses commits adultery then the other spouse cannot put criminal charges for the same but can only file for the order of Judicial separation and divorce. It was mentioned that it is not permissible under the court of law to charge the husband or wife for the wrongdoing act like adultery under section 497 of the Indian Penal Code which is now repealed.”
It is the physical or mental pressure put on the petitioner by the respondent and is one of the grounds for conjugal relief. Cruelty is the indecent and callous behaviour of the respondent towards the petitioner, but it has not been clearly defined under the Act.
In Vinita Saxena v. Pankaj Pandit, the court held that the word ‘cruelty’ is used in relation to human conduct or human behaviour. Here, the conduct is with respect to the duties and obligations arising out of marriage. Cruelty is a course of conduct which adversely affects the other. There may be cases where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or the injurious effect on the other spouse need not be enquired into or considered. In such cases, the cruelty will be established if the conduct itself is proved or admitted.
In K. Srinivas Rao v. D.A. Deepa , the court held that cruelty may be physical or mental. It also held that cruelty is evident where one spouse so treats the other and manifests such feelings in another so as to cause reasonable apprehension in the mind of the other. In such cases it would be harmful or injurious to reside with the other spouse. Hence, it becomes a justifiable ground to seek judicial separation.
If the spouse separates from the other, i.e. if not cohabiting with the other spouse without any rational purpose, for a continuous period of two years, then the spouse can seek judicial separation on the grounds of desertion.
In Arundhati Deepak Patil v. Deepak Baburao Patil , the court held that mere physical separation between spouses for a continuous period of not less than two years immediately preceding the presentation of the petition would not constitute desertion. The factum of desertion and the intention of the party to bring cohabitation permanently to an end are the essential ingredients of legal desertion.
In Rohini Kumari v. Narendra Singh, the respondent deserted his wife; consequently, the wife filed a plea for judicial separation. The apex court decided that the petitioner, along with the judicial separation, will also be allowed to claim maintenance under the Hindu Marriage Act and Special Marriage Act.
The Act also allows for the conversion of any spouse’s religion to be a valid ground to file a plea of judicial separation. In other words, if any spouse married under the Hindu wedlock changes his/her religion from Hindu to any other, then he/she (spouse) can file a plea of judicial separation.
In Lily Thomas v. Union of India , the court held that ” religion is a matter of faith stemming from the depth of the heart and mind. a person who mockingly adopts another religion where the plurality of marriage is permitted so as to renounce the previous marriage and desert the wife, he cannot be permitted to take advantage of his exploitation as religion is not a commodity exploited. The institution of marriage under every personal law is a sacred institution. Under Hindu law, marriage is a sacrament. Both have to be preserved.”
In Robasa Khanum v. Khodadad Bomanji , the apex court decided “that change of religion by one spouse without persisting from the execution of conjugal rights is no ground for the Judicial Separation. ” It is remarked as a landmark judgement because it established that if the spouse who converted his/her religion does not cause trouble in upholding their marital duties, then the other spouse cannot apply for judicial separation or divorce.
Leprosy and Venereal disease
The act allows for a spouse to file for judicial separation if the other is having a disease like leprosy. In addition, if the spouse has an incurable disease, then the other can file a plea for judicial separation.
In Swarajya Laxmi v. G.G. Padma Rao , it was declared that “Lepromatous leprosy is a virulent and incurable form of leprosy and thus a ground for divorce or judicial separation.”
In M. Jasmine Devapriya v. A. Stephen Dhanraj , the High Court of Madras held that if one of the spouses has leprosy, then it must be proved that such illness is not curable and is unfeasible for the other spouse to execute his/her conjugal duties and not possible to live with his/her spouse.
The Act also provides that if a spouse is mentally sick and poses a danger for the other spouse, the hurt spouse can use insanity as a valid ground to file a plea of judicial separation. To get this relief, the petitioner must prove that:
- the respondent is of unsound mind that is incurable
- the degree of the mental disorder must be such that the petitioner can not reasonably be expected to live with his/her spouse because of their condition.
In Anima Roy v. Prabadh Mohan Ray , the respondent started showing symptoms of a rare disease. The doctor was unable to trace the period in which the respondent developed the disease. The court declared that it was not ascertained at the moment of marriage and hence, is a ground to file a plea for judicial separation.
If the spouse has not heard from the other spouse or is unaware if he/she is living for a period not less than seven years, then the spouse may present a petition for judicial separation.
Some other grounds to file a plea for judicial separation include:
- Renunciation of World
- Repudiation of the marriage
- Rape, Sodomy or Beastiality
From the above observations, it is noteworthy that judicial separation is purely an instrument for married couples to reconsider their divorce decision by giving them time to think and introspect their relationship in their own separate space. This instrument helps them to make the decision more rationally. Though the Hindu law considers marriage to be an unbreakable bond, it has progressed and adapted to the changing society over time. Therefore, judicial separation is a good way by which spouses can try and resolve their dispute by making the best decision.
 Section 10(1), Hindu Marriage Act,1955
 (1993) 1 SCC 325
 Section 13(1)(i), Hindu Marriage Act
 (2001) 4 SCC 125
 1988 AIR 835
 Section 13(1)(i-a), Hindu Marriage Act
 (2006) 3 SCC 778.
 (2013) 5 SCC 226
 (2008) 6 Mah LJ 554
 (1972) 1 SCC 1
 (2000) 6 SCC 224
 (1946) 48 BOMLR 864
 (1974) 1 SCC 58
 017 SCC Mad 26884
 1978 AIR 803
Author: Prarthana Vasudevan,
Christ (Deemed to be University), 1st year B.A. L.L.B