This article is written by Tanishka Dhingra of University of Petroleum and Energy Studies.
ABSTRACT -:
Marriage is seen as a crucial aspect of human existence. The most challenging situations in a person’s life, however, are legal separation and divorce. Indian culture views marriage as a sacrament. It is a custom and tradition-based husband-and-wife relationship that will never alter. Before 1955, there was no redress available if a marriage failed. The marriage could not be ended through divorce, therefore they had to continue their relationship. Hindu Marriage Act, which includes measures for judicial separation and divorce, entered into force after 1955. Manu asserts that until death, a husband and wife cannot be separated. Their union is unbreakable.
A marriage that is dissolved by mutual agreement is void, according to the Arthashastra, and must be mutually renounced by both parties. According to ancient scripture, a wife is incomplete without a husband, and vice versa. The wife is regarded as her husband’s ardhangini since she cannot be separated from him. Manu, though, is not a big believer in the notion of ending a marriage. However, the Hindu Marriage Act of 1955 expanded Section 13 to include numerous subclauses because there are numerous grounds for divorcing one’s husband. According to the Act, divorce is defined as the dissolution of a marriage. For the reasons stated by law and in the interest of society, the marriage or marital status relationship should be covered by some form of protection. According to section 13 of the Hindu Marriage Act of 1955, divorce is only permitted for serious reasons; in all other cases, there are other options. For both spouses who get married under the same Act, Section 10 of the Hindu Marriage Act, of 1955 establishes the notion of judicial separation. They can submit a petition for judicial separation under section 10 if they decide to end their marriage. They are not required to cohabitate once the order has been granted.
A judicial separation is a tool that Indian courts have developed that, despite having a character similar to that of divorce, gives both parties to a difficult marriage some time for introspection in an effort to avert the dissolution of the marriage by divorce. [1] This research paper will cover everything there is to know about the judicial separation legal instrument.
INTRODUCTION -:
Famous anthropologist Robert Lowie once said that “Marriage is a relatively enduring tie between acceptable partners”.[2] Marriage is viewed as a sacrament in the social tradition of Hinduism. Marriage is regarded as an indivisible and irrevocable tie, and it is regarded as a person’s religious duty. This idea, however, has evolved over time and is no longer regarded as being inseparable. The termination of marriage under Indian matrimonial law can take place either through a divorce or a judicial separation agreement. Contrary to divorce, which completely dissolves a marriage, judicial separation is a measure made available to married couples who merely desire to suspend part of their rights and obligations. An alternative to divorce is a judicial separation agreement. Simply put, judicial separation is a legal procedure that enables a couple to part ways while still upholding their marriage.. It is a separation provided by virtue of a court order to give a difficult marriage some time for introspection. It is adapted from the English notion of mensa et thoro. The parties have time to consider whether to end their marriage during the judicial separation period, but if they are unable to come to an agreement, the court will impose divorce as the final option. Following significant revisions made in 1976, the grounds for judicial separation under the Hindu Marriage Act are essentially the same as those for divorce under Section 13 of the Act. The Special Marriage Act was the first piece of legislation pertaining to judicial separation; however, changes made in the 1970s and 1976 made judicial separation law a part of the Hindu Marriage Act with some modifications. Currently, whenever a divorce is requested on any of the grounds listed in Section 13 of the Hindu Marriage Act (aside from the respondent’s prolonged disappearance or conversion), the court may first issue a decree for judicial separation. After one year, if the parties have not reconciled, either party may then request a divorce. There is no such thing as judicial separation in Muslim law because divorce is the only option for ending a contract marriage. However, there are some circumstances in which a wife can choose to live apart from her husband, though this no-cohabitation is more like a divorce than a judicial separation.
WHAT IS 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. Separation from ‘bed and board’ is referred to as “divorce mensa et thoro” in some cases. Following the judicial separation order, the husband and wife are no longer required to cohabitate or live together, and all of their fundamental marital responsibilities are suspended. They are only separated from one another, voluntarily, to give them space to reflect on their marriage. Typically, a judicial separation agreement leads to a divorce or a reconciliation between the husband and wife. Therefore, this time of separation serves as a chance for them to evaluate their marriage; if they decide that they no longer want to be married, they can decide to divorce.
A separation agreement prevents the parties from getting married again because they are still husband and wife. Additionally, they could be charged with bigamy if they get remarried. The other spouse will inherit the deceased spouse’s assets if they pass away while the separation agreement is still in effect. A legitimate marriage between the parties was yet another prerequisite for a legal separation. In invalid marriages, the agreement of separation cannot be made; nevertheless, if the marriage is voidable, the situation can be different.
In Subbarama Reddiar v. Saraswathi Ammal,[3]the Madras High Court exhaustively discussed the nature and scope of judicial separation (in this case with regard to the ground of adultery) and made the observation that if a spouse requests judicial separation on the grounds specified in Section 13 of the Hindu Marriage Act, 1955, the same may be granted when the petitioner spouse successfully proves the adulterous relation.
The following Acts included varied judicial separation provisions:
- The Hindu Marriage Act of 1955 provides legal protection for Hindus who follow Buddhism, Sikhism, and Jainism.
- For Christians, in accordance with The Divorce Act of 1869,
- The Parsi Marriage and Divorce Act of 1936 is applicable to Parsis.
- Everyone is subject to the Special Marriage Act of 1954.
JUDICIAL SEPARATION UNDER DIFFERENT PERSONAL LAWS
HINDU LAW-:
Marriage is viewed as a sacred ritual that is both unbreakable and eternal in the Hindu religion. It is taken into account for many upcoming lives in addition to this one. Manu, an ancient lawgiver, ruled that a marriage could not be annulled. However, a number of modifications in Hindu law occurred as a result of the introduction of new issues in contemporary society. Marriages are no longer regarded as being irrevocable in nature. In the event of disagreements or other issues, the parties to a marriage have a number of options for resolving them, including the ability to file for divorce or judicial separation.
The matrimonial relief of “judicial separation” is granted by Section 10 of the Hindu Marriage Act, 1955, and the same situation was also offered by Section 23 of the Special Marriage Act, 1954. The same grounds are listed in both laws’ provisions for divorce agreements when a decree of judicial separation is sought by either the husband or the wife.
Under Section 13 sub-sections (1) and (2) of the Hindu Marriage Act of 1955 and Section 27 sub-sections (1) and (2) of the Special Marriage Act of 1954, different grounds for judicial separation were laid out.
A petition for judicial separation may be filed on either party’s behalf under the conditions listed in subsection (1), but only the wife may do so under the conditions listed in subsection (2).[4]
Here are a few of these reasons:
- Adultery, Cruelty, Desertion, Conversion,
- mental illness or unsoundness of mind,
- venereal illness,
- Renunciation,
- missing for seven years,
- Bigamy, Husband guilty of bestiality, sodomy, or rape.
Parsi Law -:
The ceremony known as “Ashirvad,” in which the priest bestows blessings on the wedded spouses in the presence of two Parsi witnesses, is how marriage is solemnized in the Parsi religion. As a measure of relief for married spouses, the Parsi Marriage and Divorce Act of 1936 included provisions for nullity of the marriage, divorce, and judicial separation. Any Parsi husband or wife may bring a “suit for judicial separation” under Section 34[5] on any of the reasons listed in the Act for divorce under Section 32.[6] The Special Marriage Act of 1954 and the Hindu Marriage Act of 1955 both provide comparable reasons for divorce.
Christian Law -:
Christian marriages are performed in accordance with Christian traditions in the presence of a minister of religion, a member of the clergy, or another religious figure. These unions are also legally binding contracts.
The Indian Christian Marriage Act of 1872 contained numerous rules relating to marriage and other personal laws specific to the Christian community, whereas the Divorce Act of 1869 contained provisions relating to divorce and dissolution of marriage. The Christian husband or wife may request an order of judicial separation under Sections 22[7] and 23 of the Divorce Act, of 1869, on the grounds of adultery, cruelty, or desertion lasting more than two years.
This ruling will be equivalent to a mensa et toro divorce, which separates the parties and prevents them from cohabitating but does not officially end the marriage.
According to Section 26[8] of the Divorce Act, this decree may be overturned at the request of the spouse of the party on whose petition the decree of judicial separation was given. It may be argued that he or she was not present when the petition for judicial separation was filed, and if the court considers this argument convincing, it may issue a judgment for its reversal.
MUSLIM LAW -:
In Muslim law, there is no notion of relief from judicial separation. It was stated in the case of Rahmat Ullah and Khatoon Nisa v. the State of U.P. [9](1994) that “Muslim Personal Law or Shariat Law, although recognize the concept of talaq, that is, divorce, does not know or does not conceive of any such thing as “judicial separation as provided under the Hindu Marriage Act and the Special Marriage Act.” Despite the fact that there is no law that specifically addresses the relief of judicial separation for spouses, some l
landmark cases have expanded the grounds for dissolution of marriage under Section 2 of the Dissolution of Muslim Marriages Act, 1939, to include judicial separation.
Among the grounds listed by the Act are some of the following:
- 4 years without knowing where the husband is,
- Failing to perform maintenance for two years,
- The husband receiving a 7-year or longer prison term.
- 3 years of marital obligations not being fulfilled,
- Impotency,
- Leprosy or a venereal disease patient, or insane,
- When a marriage is solemnized before age 18 and the wife rejects the union,
- Cruelty.
The honorable justices listed a number of grounds in the case of Ms. Jordan Diengdeh v. S.S. Chopra[10] (1985) in which a Muslim wife could also obtain an order for the dissolution of marriage. This case also highlighted the necessity for consistent legislation that will apply to everyone, regardless of faith, regarding the nullity of marriage, divorce, and judicial separation.
GROUNDS OF JUDICIAL SEPARATION IN INDIA
- ADULTERY
It refers to willing sexual activity between a married couple’s partners who is not a child of the marriage. In the case of Dr. H.T. Vira Reddi v. Kistamma (1968)[11]AIR 1969 Mad 235, the court granted the appellant (husband) judicial separation on the grounds that the respondent (wife) had engaged in sexual activity with a third party. The Court ruled that even if just one instance of the other spouse’s adultery is established, legal separation will still be granted.
- CRUELTY
The word “cruelty” has a different meaning than how the average person would use it. The term “legal cruelty” has a different meaning. In the case of G.V.N. Kaeswara Rao v. G. Jalli (2002)[12], the Supreme Court attempts to define the term “cruelty” in relation to marriage. The act would be considered cruel, according to the Supreme Court, if it was done with the intent to harm the other party. It might not make the spouse fearful that cohabiting with the other spouse is bad for them. It doesn’t matter what the person who is acting cruelly intended. Additionally, it need not be done solely by the respondent or against the petitioner.
- DESERTION
The basis for an appeal of judicial separation may be desertion during a continuous two-year period. It denotes the complete renunciation of one party’s marital obligations in the absence of any justification and with the other party’s consent. There are three possible types:
Actual desertion
When one of the spouses renounces the other through any of their actions. For instance, in the case of Meena v. Lachman (1959)[13], the wife went to her parent’s 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.
Constructive Desertion
The spouse who is compelled to leave refers to it as “constructive desertion” when one of the spouses creates an environment that pushes the other spouse to leave. For instance, in the case of Jyotish Chandra Guha v. Meera Guha (1969)[14], the wife endured great mental and physical suffering as a result of the husband’s lack of interest in her and his cold and rude behavior towards her from the start of the marriage, forcing her to file for divorce. It was considered to be the husband’s desertion.
Willful Neglect
Wilful neglect occurs when one spouse purposefully ignores the other without actually leaving. It includes neglecting a number of other marital responsibilities or refusing to cohabit.
- CONVERSION
The other spouse may file an appeal for judicial separation if any of the spouses has left Hinduism and converted to a different religion. In the 1983 case of Vilayat Raj v. Smt. Sunila[15], the husband brought a petition for divorce after converting to Islam. It was unclear if the Hindu Marriage Act of 1955 allowed a Hindu apostate to appeal for the dissolution of their marriage.
The Court ruled that he is permitted to do so since, per se, a person’s conversion to a different religion does not provide a basis for dissolving their marriage.
However, the Court further noted that a party is not permitted to profit from an issue he has created that harms the other spouse in order to cover up his own wrongdoing or impairment.
- UNSOUND MIND
One can file an appeal for judicial separation if one of the spouses is incapable of making decisions or has an incurable mental illness or disorder, and it is difficult for the other spouse to cohabitate with that spouse.
In the 1968 case of Anima Roy v. Proboth Mohan Roy[16], where the husband sought the nullity of the union on the grounds that his wife was mentally unfit, it was argued that she had schizophrenia at the time of the union. The Court denied his petition because it was filed with an unnecessary three-year delay from the time it was claimed he learned of his wife’s ailment and because the evidence presented was likewise unsatisfactory.
- VENEREAL COMMUNICABLE DISEASES
The other spouse may ask for a judicial separation if one of the spouses has any venereal diseases that are contagious and incurable, such as HIV/AIDS, HPV, syphilis, etc. In Madhusudan v. Smt. Chandrika (1975)[17], the husband challenges the District Judge’s decision to deny his request for a judicial separation or annulment due to his wife’s syphilis-related venereal disease. The Court dismissed the appeal because he was unable to show that his wife had syphilis for three years prior to the petition date. Additionally, it was not established that the illness was terminal.
- RENUNCIATION
Renunciation describes a person who has given up the entire world and all material comforts in order to live a spiritual life and become enlightened. It is one of the justifications for requesting judicial separation from a spouse. The phrase “renounce the world” was defined in the case of Teesta Chattoraj v. Union of India (2012)[18] as withdrawing from material interests in order to
lead a spiritual life. It denotes formally approving the abandonment, surrender, or renunciation of a right, claim, property, etc.
- PRESUMPTION OF NOT BEING ALIVE
The other spouse may request judicial separation on this basis if one of the spouses has been missing for at least 7 years and there is no knowledge about his or her whereabouts, nor are his or her family or acquaintances aware of his or her presence.
GROUNDS OF JUDICIAL SEPARATION AVAILABLE TO WIFE
- BIGAMY
When one is already legally married to one person, it refers to marrying the other person. If the husband remarries the other woman before the Act takes effect, even if his wife is still living, the wife may ask for a grant of judicial separation from her husband. The plaintiff (wife) in Harmohan Senapati v. Smt. Kamala Kumari (1978)[19] filed a lawsuit for judicial separation after learning that the defendant (husband) had married the other lady and cohabited with her without legally ending their first union.
- GUILTY OF RAPE, SODOMY & BESTIALITY
The wife is allowed to request a judicial separation on this basis if the husband commits rape, sodomy, or bestiality after the marriage. For instance, if husband ‘A’ and wife ‘B’ are married and ‘A’ is found guilty of raping another woman, the wife ‘B’ may ask for judicial separation.
- NON-RESUMPTION OF COHABITATION AFTER AN ORDER OF MAINTENANCE
The wife may file a petition for judicial separation if any judgment or order was rendered against the husband for failing to support the wife under various laws, such as the Hindu Adoptions and Maintenance Act of 1956 or Section 125 of the Code of Criminal Procedure of 1973, and the couple has not cohabited for a period of one year or more.
- REPUDIATION OF MARRIAGE AFTER THE AGE OF 15 AND BEFORE THE AGE OF 18
A petition for judicial separation may be filed by the wife if the girl was not yet 15 years old when the marriage was solemnized and she abandoned the union after turning 15, but not before turning 18. This area is very important in offering relief to young girls who were forced into marriage, especially those from underdeveloped communities.
CONSEQUENCES OF JUDICIAL SEPARATION
Following a court separation agreement, the husband and wife are no longer required to cohabitate. Although they continue to be legally married, their ability to cohabit continues to be suspended. The Indian Penal Code, 1860’s Section 376B offers legal protection to a separated wife by declaring that the husband would be held accountable for punishment if, following the decree of judicial separation, he had sexual contact with her without her agreement. Such a crime will result in a minimum sentence of 2 years and a maximum sentence of 7 years. Additionally, while the marriages were formally separated, the partners were forbidden from getting married again. In the case of Narasimha Reddy v. Basamma (1975)[20], it was decided that it would be bigamy if either spouse was married during the separation before the divorce. According to the ruling in Krishna Bhattacharjee v. Sarathi Choudhary (2015), where the Supreme Court recognized the wife’s entitlement to’stridhan’ following an agreement of separation, the spouses after a judicial separation were entitled to the same property rights as before. The judge determined that it belonged solely to the wife.
In order for spouses to decide between conciliation and divorce, the court will occasionally issue a decree of judicial separation for a year. During this time, they have the chance to reflect on their marriage and find common ground.
IS JUDICIAL SEPARATION THE SAME AS DIVORCE?
Both judicial separation and divorce are matrimonial reliefs made available by various laws to the spouse who feels mistreated in a marriage. Both are methods for ending a marriage’s rights and duties to one another. However, as legal separation does not dissolve the entire marriage itself, it is a “lesser evil” than divorce.
The husband and wife’s marital relationship as husband and wife does not change; it merely separates them and prevents them from cohabitating. By resuming their conjugal duties and rights towards one another, or by moving in together, one can overturn the judgment of judicial separation.
The Allahabad High Court has listed a number of differences between judicial separation and divorce in the case of Amit Singh v. Sandhya Singh (2019)[21]
The differences given are as follows.[22]
| Grounds | Divorce | Judicial Separation |
| Termination of Marriage | After the agreement of divorce, the marriage bond between the spouses is terminated. | After the agreement of judicial separation, the marriage bond between the spouses is not terminated. |
| Mutual rights and obligations | The mutual rights and obligations against each other end with the divorce. | The mutual rights and obligations against each other remain suspended only in the case of judicial separation. |
| Chance of reconciliation | There is no chance for reconciliation as the marriage no longer exists. | There is a chance for reconciliation if the spouses agree to live with each other again and resolve their differences. |
| Right to remarry | The parties are allowed to remarry as they are no longer bound by any marital bond. | The parties are not allowed to remarry as their marital bond was merely suspended, not ended. |
| Status of being husband and wife | The parties are no longer called husband and wife. | Both parties remain husband and wife to each other. |
| Time for filing the petition | The petition for divorce can only be filed after one year of the marriage. | The petition for judicial separation can be filed at any time after the marriage. |
| Process | It is a two-step process. First, for reconciliation and then for divorce. | It is a one-step process. |
| Rights and liabilities | The divorced partner loses all his/her rights to the partner’s assets. | The partner in a judicial separation has the same rights as married ones in the assets of the partnership. |
WHY JUDICIAL SEPARATION IS BETTER THAN DIVORCE?
It has been determined in a number of cases that judicial separation is a “lesser evil” than divorce since there is a larger likelihood of reconciliation in the marriage. Contrary to divorce, a legal separation does not result in the permanent severance of marital ties. As a result, it gives both parties in the marriage the opportunity to reflect on their interactions and determine their future circumstances, including whether they want to get a divorce or reconcile.
Divorce appears to be a major step for such problems because disagreements in marriages can sometimes result from minor issues. In these situations, judicial separation offers the sufferer an alternate avenue of remedy. [23]
A judicial separation is a type of limited divorce in which the marital connection is still intact but only the requirement of cohabitation is stopped. It serves as the last stage before a final divorce to settle their marital conflicts. Additionally, this gives the parties some time to consider their choice and seek guidance from their friends and relatives.
The Bombay High Court ruled in Mozelle Robin Solomon v. Lt. Col. R.J. Solomon (1968)[24] that there is a difference between the two because a divorce decree has the effect of ending the marriage and the marital bond, creating an absolute separation between the parties both in fact and in law. However, a decree for judicial separation is not one of absolute irrevocability; rather, it is one for legal separation and does not, in and of itself, dissolve the marriage ties.
A judicial separation is better than a divorce since it gives the couple the opportunity to revoke the decree and live together once more after some time apart. Judicial Separation is a tool created by the law to provide both parties to a dysfunctional marriage some time for introspection and give them the freedom and independence to choose their own course. Although judicial separation gives both the husband and the wife the opportunity to contemplate the prospect of avoiding the permanent legal separation by annulling the marriage, divorce formally ends the marriage at the couple’s discretion. Compared to divorce, judicial separation is preferable since it enables the pair to make sensible decisions and think clearly.
CONCLUSION
In our society, especially in India, marriage is recognized as a holy bond, and it is considered unlucky for this sacred relationship to be broken. Since the beginning of time, many couples have been required to live in unhappy forced marriages. People are hesitant to divorce since it is a very big step for them and might damage their reputation, particularly in the case of women. As a result, they have a number of additional options. An alternative to divorce, which may be requested at any point after marriage, is judicial separation. If the married couple is unhappy in their union, they can pray for a court order for legal separation and reflect on their union. 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.
[1] Judicial Separation, Law Times Journal, https://lawtimesjournal.in/judicial-seperation/#_edn2, 24/02/2020
[2] Judicial Separation, Ipleaders, https://blog.ipleaders.in/judicial-separation/#What_is_judicial_separation, 20/08/2022
[3] (1966) 2 MLJ 263
[4] Section 13 in The Hindu Marriage Act, 1955, Indian Kanoon,https://indiankanoon.org/doc/1284729/ .
[5] Section 34 in The Parsi Marriage and Divorce Act, 1936, Indian Kanoon,https://indiankanoon.org/doc/1743359/#:~:text=34.,divorce%2034%20%5B**%5D.
[6] Section 32 in The Parsi Marriage and Divorce Act, 1936, Indian Kanoon, https://indiankanoon.org/doc/869363/.
[7] Section 22 in The Indian Divorce Act, 1869,Indian Kanoon,https://indiankanoon.org/doc/165694233/#:~:text=%2D%20No%20decree%20shall%20hereafter%20be,mensa%20et%20toro%20under%20the
[8] Section 26 in THE DIVORCE ACT, 1869, Indian Kanoon, https://indiankanoon.org/doc/798597/
[9] (1994) DMC 64
[10] 1985 AIR 935, 1985 SCR Supl. (1) 704
[11] Dr. H.T. Vira Reddi vs Kistamma, Legal Data, https://legaldata.in/court/read/2023480,
[12] Supra 2
[13] 1964 AIR 40 1964 SCR (4) 331
[14] (AIR 1970 Cal 266 ), Jyotish Chandra Guha vs Sm. Meera Guha, Legal Data, https://legaldata.in/court/read/2464742
[15] Vilayat Raj Alias Vilayat Khan v/s Sunila, Lawyer Services, https://www.lawyerservices.in/Vilayat-Raj-Alias-Vilayat-Khan-Versus-Sunila-1983-02-17,
[16] Supra 2
[17] AIR 1975 MP 174
[18] Teesta Chattoraj v. UOI, Lawyers Club India, https://www.lawyersclubindia.com/judiciary/teesta-chattoraj-v-uoi-2011-consent-of-natural-father-for-giving-child-in-adoption-4799.asp#:~:text=Both%20parents%20of%20a%20child,in%20adoption%20cannot%20be%20questioned., 03/10/2020
[19] AIR 1979 Ori 51
[20] AIR 1976 AP 77
[21] Amit Singh v. Sandhya Singh , eLegalix – Allahabad High Court Judgment Information System ,https://elegalix.allahabadhighcourt.in/elegalix/WebShowJudgment.do,
[22] Supra 2
[23] Supra 2
[24] (1979) 81 BOMLR 578
