This article is written by Durgesh Yadav of 3rd Semester of B R Ambedkar National Law University, Sonipat, an intern under Legal Vidhiya
ABSTRACT
Marriage is a union of two people recognized by different laws and customs. For a long period, it was considered as a dissolvable or unbreakable union. Both partners have to live together with love and championship in all their ups and downs till their death. But, with time, more and more conflicts started between married partners. Their relations started bittering. The path became rough for them. So, the concept of divorce emerged in society. Now, marriage is not an inseparable union. People get divorced on several grounds.
Further with the evolution of society, another idea emerged. As per the conventional theory, divorce was the sole route to live separately. When you ended your marriage, you could live anywhere as per your choice. Before divorce, you have no right to leave your spouse. It was against their conjugal rights. But, sometimes, couples want to give another chance to their marriage. They want to live separately for a period of time for some reason. From there, the concept of judicial separation developed. It is often misconstrued with divorce. But there is a huge difference between these concepts. Because of judicial separation, married people can live separate lives without violating their holy vows.
In many cases of divorce, the family court also orders judicial separation. After the decree of the court, the couples have to leave separately physically and sexually. It is in the best interest of both the partners and their married life. So, this concept became part of family law in India.
This notion of judicial separation is mentioned in Section 10 of the Hindu Marriage Act, 1955, Section 23 of the Special Marriage Act, 1954, and Section 22 of the Divorce Act.
KEYWORDS: Judicial Separation. Hindu Marriage Act, Special Marriage Act, Divorce
OBJECTIVE
Many provisions of judicial separation are similar to divorce. Many times, people get confused between both concepts. So, this work aims to discuss the idea of judicial separation in various personal laws related to marriage. The cases and grounds are the same as mentioned in different judgments of the court.
INTRODUCTION
In India, marriage is a social institution that is often connected with some ceremonies and rituals. However, because of diversity in religious beliefs, all have their ways of solemnizing a marriage. Still, commonly it is considered as a sacred bond that must be preserved for a stable society. But in the contemporary world, the number of divorces increased rapidly. This increases huge imbalance in the social life of people. Maybe couples have various reasons to get divorced, but sometimes they just want time to reconsider their relationship. So, to counter this, the concept of judicial separation is introduced. By obtaining permission from the court, the parties can live separately regardless of their rights and duties toward each other. Before this concept, leaving your spouse without getting a divorce was considered illegal.
Contrary to divorce, it is a temporary suspension of the rights and obligations of married couples. They can leave apart while upholding their marriage. It is considered as an introspection period of the difficulty faced by them in their marriages. During this period, they had time to reconsider their marriage and the idea of getting a divorce.
Despite taking extreme steps to end a marriage, in most cases, the court also gives a period of judicial separation to the couple for their reconciliation. If after this decree also, the couple doesn’t want to cohabit with each other, then the court grants divorce to the couple.
We get this concept from English notion of Mensa et thoro. It means the parties mean as husband and wife without cohabitation. [1] In India, this notion emerged in the 1970s and was first enacted as a law in the Special Marriage Act, of 1955. In 1976, after some significant changes, it became part of Section 13 of the Hindu Marriage Act, 1955.
Now according to the HMA, 1955, if someone approaches the court for divorce, aside from some exceptional case and respondent’s conversion and prolonged disappearance, the court passes a decree of judicial separation of 1 year. After the same, the court proceeds with the case of divorce. In Muslims, this concept of judicial separation is not legally available to the parties. As their marriages are considered as a contract, divorce is the sole option for ending a marriage, and living separately. But in some cases, husband and wife can choose to live apart, though this condition is more like a divorce than a judicial separation.
JUDICIAL SEPARATION
A court order for a husband and wife to live apart or to discontinue their sexual relations without formally dissolving their marriage is known as a judicial separation. In some cases, this separation is from ‘bed to board’ which is referred to as ‘divorce Mensa et thoro’[2]. Following the judicial separation order, the husband and wife are no longer required to cohabitate or live together; their conjugal rights are also suspended in this period. This agreement of judicial separation results in either divorce or reconciliation between the couples.
JUDICIAL SEPARATION UNDER PERSONAL LAW
HINDU LAW
In Hindus, marriage is considered as a sacrament that forms an unbreakable bond. The concept of divorce did not even exist. Manu also mentioned that marriage could not be annulled. However, this was modified to counter new issues in contemporary society. So, in any disagreement or dispute between the parties, they have 2 options provided by the law- Divorce or Judicial Separation
Section 10 of HMA provides the relief of judicial separation. Also, for the same, various grounds are also provided in Section 13(1) and (2). The same position is also given in the Special Marriage Act, 1954 under Section 23.
In the case of Subbarama Reddiar v. Sakaswathi Ammal [3], the court extensively discussed the nature and scope of judicial separation (in this case with regard to the ground of adultery) and made the observations on the ground of adultery specified in Section 13 of HMA, 1955.
The grounds of judicial separation according to Hindu Marriage Act, 1955 are-
- Adultery
- Cruelty
- Desertion for a period of at least two years (consecutively) before the lawsuit
- Incurable unsoundness
- Virulent and incurable leprosy
- Contagious venereal disease
- Renunciation of the material world[4]
CHRISTIAN LAW
According to the Christian law, marriages are considered as legally binding contracts commencing under Christian traditions. In India, Indian Christians are governed under 2 personal laws- the Indian Christian Marriage Act of 1872 and the Divorce Act of 1869.
Divorce Act contained provisions regarding divorce and dissolution of marriage of the Christians. In the same act, Sections 22 and 23 talk about judicial separation. Under section 22, they seek the decree of judicial separation, and under Section 23[5]; grounds are mentioned for the same. The grounds are- Adultery, Cruelty, or Desertion for at least 2 years.
This ruling is based on Mensa et toro divorce.
MUSLIM LAW
In Muslim Law, marriage is considered as a civil contract. And to end this contract, divorce is the only option they have. This notion of judicial separation is not available to them.
In the case of Rahmat Ullah and Khatoon Nisa v. the State of U. P[6]., the court mentioned that despite acknowledging the notion of talaq, or divorce, Muslim personal law or Shariat law does not know or cannot comprehend the concept of “judicial separation as provided under the Hindu Marriage Act and the Special Marriage Act.”
GROUND OF JUDICIAL SEPARATION IN INDIA
- ADULTERY- It means when one of the couples engages in sexual activity deliberately with someone other than his or her spouse. The party who suffered harm may seek redress in this case; however, the extramarital relationship must take place after the marriage. In the case of Dr. H.T. Vira Reddi v. Kistamma (1968)[7], the court granted judicial separation to the appellant (husband) because the respondent had engaged in sexual activity with a third party. According to the court, “the relief of legal separation will be provided even if a single act of infidelity on the part of the other spouse is proved.”
- CRUELTY- When a partner suffers any kind of physical or mental harm after the marriage, it amounts to cruelty. In the case of Shyamsundar v. Santadevi[8], the petitioner (wife) was tortured by her husband’s relatives and the husband took no steps to protect her. This amounts to cruelty.
- DESERTION- According to Indian Laws, it means if a partner abandons another partner for any reason without informing them for at least two years, the other partner has the right to petition for judicial separation. The separation must be unreasonable and without the knowledge of the other spouse. In the case of Meena v. Lachman [9](1959), the wife went to her parents’ house without telling her husband and gave him false assurances that she would return, but she didn’t for two years. The Bombay High Court declared judicial separation and declared desertion.
- CONVERSION- Based on this ground, a partner may seek judicial separation if one spouse converts to any other religion. In the case of Vilayat Raj v. Smt. Sunila[10], the husband brought a petition after converting to Islam. The court held that the party was not entitled to take advantage of his gain.
- UNSOUNDNESS OF MIND- If any spouse in a marriage has any incurable mental illness that makes it difficult for the other spouse to continue their married life, and then the other spouse is eligible to file for judicial separation. In the case of Anima Roy v. Prabodh Mohan Roy[11], the husband sought the nullity of the marriage in the group that she had schizophrenia which resulted in mental illness. The court denied his petition as the disease was not proved at the time of marriage.
- LEPROSY- Based on this ground, the spouse may file a petition for judicial separation if the other spouse has a chronic illness, such as leprosy, which has no treatment and makes life difficult for the other. This is because the other spouse cannot squander their own time caring for the sick spouse.
- VENEREAL DISEASE- a spouse has legal grounds to file a petition for judicial separation if they were unaware of the other spouse’s incurable and communicable disease at the time of marriage. In the case of Madhusudan v. Smt. Chandrika, [12]the husband requested a judicial separation or annulment due to his wife’s syphilis-related venereal disease. The same was dismissed as he wasn’t able to constitute that it was while solemnization of their marriage.
- RENUNCIATION OF WORLD- It means the enunciation of the material world and a commitment to live a holy life. It must be a complete withdrawal from worldly interest. The other spouse can request judicial separation. This is defined in the case of Teesta Chattoraj vs. Union of India (2012).[13]
- PRESUMPTION OF DEATH- When a person has been missing for seven or more years, it is assumed by the court that he/she has passed away. The other partner can seek judicial separation.
OTHER GROUNDS OF JUDICIAL SEPARATION TO WIVES
- BIGAMY- It means when a husband is married to another female, during his living spouse, it is called bigamy. Both the wives have the right of judicial separation. In the case of Harmohan Senapati v. Kamala Kumari[14], a petition was filed by the plaintiff for judicial separation after learning that his husband married another lady without legal dissolution of their marriage.
- GUILTY OF RAPE, SODOMY, OR BESTIALITY- A wife is entitled to file a petition if her husband is guilty of the charges of rape, bestiality or sodomy.
- REPUDIATING OF MARRIAGE- A petition of judicial separation can be filed by the wife if she gets married before the age of 15. She can abandon marriage after turning 15 and before 18 years of age. This is an important relief for the young girls of lower communities.
CONCLUSION
In India, Marriage is a holy union of two people which must be perverse at any cost. The courts also try to protect this union. So, the concept of judicial separation is introduced in society. It acts as an alternative to divorce (a pause instead of ending it). According to the courts, judicial separation is a lesser evil than divorce because it has several benefits over a divorce settlement. It gives the parties time to reconsider their choice and find common ground. It has been demonstrated that using this method can help heal rifts in families and keep marriage as a holy institution.
REFERENCES
- Pragya Agrahari, Judicial separation, Ipleader https://blog.ipleaders.in/judicial-separation/#:~:text=Actual%20desertion&text=For%20example%2C%20in%20the%20case,desertion%20and%20ordered%20judicial%20separation
- Hindu Marriage Act,1955, Section 13, No.25, Act of Parliament, 1955 (India)
- Judicial Separation, Legal Service India https://www.legalserviceindia.com/legal/article-5616-judicial-separation.html
- Judicial Separation, Patna Law College https://www.patnalawcollege.ac.in/econtent/JUDICIAL%20SEPARATION%20by%20Neha%20Singh.pdf
[1] “A Mensa et thoro.” Merriam-Webster.com Dictionary, Merriam-Webster, https://www.merriam-webster.com/dictionary/a%20mensa%20et%20thoro. Accessed 15 Sep. 2023.
[2] Pragya Agrahari, Judicial separation, Ipleader (15 Sep. 23, 11:09 PM) https://blog.ipleaders.in/judicial-separation/#:~:text=Actual%20desertion&text=For%20example%2C%20in%20the%20case,desertion%20and%20ordered%20judicial%20separation.
[3] Subbarama Reddiar v. Sakaswathi Ammal (1966) 79 LW 382 (Mad)
[4] Hindu Marriage Act,1955, Section 13, No.25, Act of Parliament, 1955 (India)
[5] Indian Divorce Act, 1869, Section 22 and Section 23, Act No. 4 of 1869
[6] Rahmat Ullah And Khatoon Nisa vs State Of U.P. And Ors II (1994) DMC 64
[7] Dr. H.T. Vira Reddi vs Kistamma AIR 1969 Mad 235
[8] Shyam Sunder And Anr. vs Shanti Devi AIR 1961 All 563
[9] Meena Alias Mota vs Lachman Utamchand Kirpalani (1959) 61 BOMLR 1549
[10] Vilayat Raj Alias Vilayat Khan vs Smt. Sunila AIR 1983 Delhi 351
[11] Sm. Anima Roy vs Probodh Mohan Roy AIR 1969 Cal 304
[12] Madhusudan vs Smt. Chandrika AIR 1975 MP 174
[13] Teesta Chattoraj Respondent: Union of India Citation: WP (C) 2888/2011
[14] Harmohan Senapati vs Smt. Kamala Kumari Senapati AIR 1979 Ori 51
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