Judicial Separation under Muslim Law
Judicial separation is a legal instrument by which the court orders the married couple to stay apart from each other for one year (usually) to give the spouses the time to introspect their marriage and their decision of divorce. During this period, the couples are ordered by the court to have no contact with each other and stay physically, mentally and emotionally detached from each other. This arrangement allows the spouses to find out if they can live apart happily and willingly. Moreover, it gives the individual ample time to analyse and introspect the dispute and their relationship in their separate space. Ultimately, judicial separation facilitates a more rational decision to be taken by the parties seeking a divorce.
Unlike the Hindu law, which has a separate section dealing with judicial separation, the Muslim law lacks a codified provision for judicial separation. In fact, there is no such concept of judicial separation under Muslim law. Instead, the legislation is designed in accordance with the Holy Quran and the Hadiths. Hadiths are a collection of traditions that consist of daily practices and sayings of Prophet Mohammed.
GROUNDS FOR JUDICIAL SEPARATION
Though the Muslim Law doesn’t have any codified provision for judicial separation as such. However, over the years, the courts have declared judicial separation before the parties divorce. This instrument helps them decide in their best interest. The grounds for judicial separation have been given under Section 2 of the Dissolution of Muslim Marriage Act, and they are:
- Absence of Husband: The wife can file a plea of judicial separation if her husband is missing or if she is unaware of his whereabouts for a continuous period of four years or more.
- Failure of Husband to provide maintenance: The wife can file a plea of judicial separation if her husband neglects to give her maintenance by not providing for her needs and requirements for a period lasting two years or more.
- Imprisonment of Husband: If the husband has been convicted for a crime punishable with a minimum of seven years of imprisonment, then the wife can file for judicial separation.
- Impotency of Husband: The wife can file a plea of judicial separation if her husband is impotent and hasn’t disclosed such information before or during their marriage.
- Insanity, Leprosy or Venereal disease: The wife can file a plea of judicial separation if her husband has proven to be insane for two years or more or is suffering from leprosy or contagious venereal disease.
- Repudiation of Marriage by wife: If the wife was married off to her husband before attaining fifteen years of age and has repudiated herself from the marriage till eighteen years of age, then the wife can file a plea for judicial separation.
- Cruelty of Husband: If the husband habitually tortures his wife and beats her, in other words, he is treating her with cruelty, then the wife can seek judicial separation.
- Suppose the husband has failed to fulfil his marital obligations like not taking care of his wife and children’s physical, mental and emotional needs. In that case, the wife can file for judicial separation.
Ms. Jordan Diengdeh v. S.S. Chopra
The wife and the husband, a tribal Christian and Sikh, respectively, were married under the Indian Christian Marriage Act, 1872, in the year 1975. The wife sought judicial separation in 1980 under Section 18, 19 and 22 of the Indian Divorce Act,1869. The ground for seeking judicial separation was the impotence of the husband, breaking down the marriage irretrievably.
What are the valid grounds to seek for married couples to seek judicial separation?
The High Court passed a decree of judicial separation on the grounds of cruelty but rejected the plea for nullity of marriage, i.e. divorce. The ground on which the wife had sought divorce was the husband’s impotence which was breaking down the marriage irretrievably. The court also laid down all the grounds on which a Muslim wife can file for judicial separation under the Mohammedan law.
It is a landmark case because it laid down the grounds for judicial separation for Muslims and gave a certain amount of protection to Muslim wives. The court also held that the laws relating to judicial separation, divorce and nullity of marriage are far-fetched from being uniform. Therefore, it suggested that the legislature must intervene in such matters to provide a uniform civil code of marriage and divorce.
Yousuf Rawther v. Sowramma
In this case, the plaintiff was married off to her husband even before she could attain puberty. Soon after the wedding, the bride moved into her husband’s house. The next day the defendant left for Coimbatore, where he was running a radio dealer’s business. A month’s sojourn in the husband’s house, the girl returned to her parents’ house. This separation lasted for a continuous period of two years or more, during which the defendant admittedly failed to maintain his wife. The defendant alleged that he was willing to keep her with him, but the wife refused to return to the conjugal home.
Subsequently, a litigation for dissolution of marriage was filed. The trial court dismissed the suit, but the Subordinate Judge’s Court granted a decree for dissolution of the marriage for which the husband filed an appeal. This appeal challenged the validity of the ruling of the lower appellate court.
Whether the wife can claim dissolution of marriage for the failure of the husband to maintain the wife for two years?
The appeal failed and was dismissed and held that failing to provide maintenance to the wife is a ground for dissolution of marriage. Additionally, the court decided that even if the wife left the marital home without reasonable cause, the husband is still obligated to maintain his wife. On failing to do so, the wife can file a plea for judicial separation.
PROCESS OF JUDICIAL SEPARATION
Obtaining a plea for judicial separation is like obtaining a divorce decree since judicial separation is considered the last step in a divorce. The spouse who seeks judicial; separation has to file a plea for the same before the district or family court by specifying the ground/grounds on which the petition is being claimed. If the grounds are recognised under the law, or the court finds the grounds justifiable, the court approves the plea and orders judicial separation. After which, the spouses need to live separately for a year (usually), giving them time to introspect their marriage.
Though there is no codified legislation for judicial separation, the concept has been realised in several landmark cases dealing with divorce or nullity of marriage. The benefits from judicial separation are subject to the nature of the dispute and the married couple. However, the court needs to give the couple such time to introspect their decision and relationship.
 AIR 1985 SC 935.
 AIR 1971 Ker 261
Author: Prarthana Vasudevan,
Christ (Deemed to be University), 1st year B.A. L.L.B