In India whenever a suit for divorce is filed the courts in their judicial rights never outrightly enforce a divorce at the very first instance. Following the Indian culture of considering a marriage a sacramental bond which cannot be broken, Indian courts have developed an instrument known as judicial separation which though having a nature similar to that of a divorce affords some time for introspection to both the parties to a troubled marriage so that dissolution of marriage by way of divorce could be avoided. This article would deal all about the legal instrument of Judicial Separation so let us dive in.
What is Judicial Separation and by what laws in India is it governed by?
As per the Collins Dictionary, a judicial separation means “a court decree requiring a married couple to cease cohabiting but not dissolving the marriage”. To simply put Judicial Separation is a legal mechanism by which a couple is separated although still being in the bond of marriage. Adopted from the English concept of mensa et thoro, it is a separation granted by virtue of a court order to afford some time for introspection to a troubled marriage. During the period of judicial separation, the parties have an opportunity to think about the continuance of their marriage and if they do not get a common ground the court orders for the last resolve that is divorce.
Under the Hindu Marriage Act, since the drastic amendments of 1976, the grounds relating to judicial separation are substantially the same as under divorce laws given under Section 13 of the Act. Law relating to Judicial Separation was first introduced in the Special Marriage Act which following the 1970s and 1976 amendments made judicial separation a part of the Hindu Marriage Act with certain tweaks. Now under the present law whenever a divorce has been asked for on any ground mentioned under Section 13 of the Hindu Marriage Act (except disappearance of the respondent for seven years or more and Conversion), the court may, grant a decree for Judicial separation first, and then after one year, either party can ask for a divorce if they do not come in terms with one another. In Muslim law, there is no concept of a judicial separation because their marriage being contractual in nature, the only dissolution by way of divorce is possible but there certain grounds on which wife can stay away from her husband but this no-cohabitation is much of the nature of a divorce rather than that of judicial separation.
In Subbarama Reddiar v. Sakaswathi Ammal[i], the Madras High has exhaustively discussed about the nature and scope of Judicial Seperation (here in relation to 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.
Judicial Separation under Hindu Marriage Act, 1976
Provision for Judicial Separation under the Hindu Marriage Act, 1955 is given under S. 10 under which subclause (1) clearly states that in a suit for a judicial separation grounds mentioned under Section 13 could be enforced and therefore it could be said that the grounds to sustain a claim for divorce by large are the grounds to claim judicial separation.
Therefore, it becomes necessary to know the grounds mentioned under Section 13 of the Hindu Marriage Act, 1955 which also gives a resolve to file for judicial separation. Grounds for judicial separation are as follows:
3. Desertion for not less than two years (continuously) preceding the suit,
4. Incurable unsoundness of mind
5. Virulent and incurable leprosy,
6. A contagious venereal disease
7. Renunciation of the material world
In case the petitioner is the wife she can file suit for grounds mentioned under Section 13(2) which are as follows –
1. That the marriage was solemnized before the commencement of the Act, and the husband had remarried before such commencement or already had a wife who is living before such commencement at the time of the marriage.
2. That the husband after the marriage has been guilty of rape, sodomy or bestiality.
3. That the bride’s marriage was solemnized before she attained the age of 15 years and she has repudiated the marriage after attaining that age but before attaining the age of 18 years.
Grounds for Judicial Separation under Hindu Law
By virtue of Section 13(1) as mentioned under Section 10, a decree for judicial separation could be asked for on the following grounds.
Insanity and Leprosy
The Hindu Marriage Act emphasises on the sanity of parties at the time of marriage. Up until 1976, for grounds like mental illness, leprosy and contagious venereal disease the respondent spouse must have been suffering from it for a period of three years such that it could become a ground of divorce. The Marriage Laws (Amendment.) Act, 1976 has greatly modified the Act, by removing the time stretch and by enlarging the varieties of “mental illnesses” to be covered for a reason of divorce.
Case Law – 1. In M. Jasmine Devapriya v. A. Stephen Dhanraj[ii], the Madras High Court which hearing a petition of Judicial Seperation on grounds of leprosy held that when spouse proves beyond reasonable doubt that the partner is suffering from a virulent leprosy and its impossible for the two to cohabit, a decree may be granted for judicial separation.
Under the Hindu Marriage Act, a spouse can ask for a divorce when his/her partner is suffering from a contagious venereal disease which could spread due to mutual cohabitation.
Case Law – 1. In the case of Ratna Manjari Das v. Dr. Bhaskar Chandra Das[iii], the Orissa High Court ruled that in case where a spouse (here, the husband) approaches a court for dissolution of marriage by way of judicial separation and then divorce, on ground of communicable venereal disease, it is important that the disease should be contagious so as to grant a decree of judicial separation.
Desertion without a reasonable cause lasting for two years is a ground for divorce under the Hindu Marriage Act. In the past desertion (of two years’ duration) constituted a ground for judicial separation. However, after the 1976 amendment, the grounds for judicial separation and divorce have been merged under that Act. The civil marriage law and the Hindu law are, thus, now identical in respect of desertion as a ground for divorce but under the Indian Divorce Act, desertion lasting for two years without excuse is ground only for judicial separation and not divorce.
Case Law – 1. In Rohini Kumari v. Narendra Singh[iv], Hon’ble Supreme Court 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 the Hindu Marriage Act and the Hindu Adoption and Maintenance Act, 1956.
Cruelty is a ground for divorce under the Hindu Marriage Act (as amended in 1976) and the Dissolution of Muslim Marriages Act, 1939. But under the Hindu law the concept, of cruelty is left undefined, whereas in Muslim law cruelty is specified to be in a form of habitual assault, notorious lifestyle, association with ill-reputed women, immoral life, interference with personal property and obstruction in religious practices.
Case Law – 1. In Trimbak Narayan Bhagwat v. Kumudini Trimbak Bhagwat[v], the Bombay High Court held that the aggrieved wife is entitled to get a decree of judicial separation and defence of insanity is no good defence.
Extra marital sex is a ground of divorce under Hindu Law. A wife can also apply for a divorce if her husband has committed rape, sodomy or bestiality. Ordinarily, adultery is, under the Act, is a ground for judicial separation available to both spouses.
Under Section 10 of the Indian Divorce Act, a wife may present a petition for the dissolution of her marriage on the ground that “the husband has been guilty of rape, sodomy or bestiality”. A similar provision is also given under Section 13(2)(ii) of the Hindu Marriage Act with improvised to make it clear that such lapses must have taken place “since the solemnisation of marriage” and not before.
Case Law – 1. In the case of Hirachand Srinivas Managaonkar v. Sunanda[vi], Hon’ble Supreme observed that in case where the adulterous nature of a spouse is proven the court may decree judicial separation which may further be moved towards a decree of divorce.
In Hindu Law sanyas i.e. renunciation of material life for spiritual and religious life, is a ground for divorce. This is exclusively for the Hindus and has no place either under the Special Marriage Act or any other personal law operating in India.
In Madhukar Bhaskar v. Saral[vii], the Bombay High Court held that renunciation of the world is a matrimonial offence and therefore the aggrieved spouse can approach for a decree of Judicial Separation
It is to be noted here that in the case where the ground of divorce is Conversion or Absence of spouse for more than 7 years the court cannot pass a decree for judicial separation. Section 13A, clearly states that in a suit for divorce the court may pass a decree of judicial separation first. But in cases of divorce on the grounds of Conversion or not being heard of for more than 7 years the operation of Section 13A has expressly been excluded because of which in a proceeding for divorce, where the ground is any one of the two grounds mentioned above, the Court has no discretion to grant judicial separation instead of a decree for divorce.
In Robasa Khanum v Khodadad Bomanji[viii], it was held that unless it is proven that by the change of religion the spouse has refrained from performing the conjugal rights, the marriage cannot be dissolved an until then an order for judicial separation cannot be passed.
What is the result of a decree of Judicial Separation?
The marriage of a spouse after a decree for judicial separation against the other spouse is not completely dissolved and therefore even though they do not have mutual rights against each other they do not cease to be lawful spouses. If the court deems fit it orders for a judicial separation which is for a period of one year during which the parties are thought to contemplate on their relation and conciliate it and not resolve to a divorce. Therefore, there is not an actual breakage of their marital relationship because of which the spouse does not lose the right to inherit properties of the other the spouse. This ruling regarding the property was held in the case of Krishna Bhattacharjee v. Sarathi Choudhary[ix].
Why is Judicial Separation important and differences between Divorce and Judicial Separation?
While discussing Judicial Separation it is clear that much of its provisions are similar to that of divorce therefore an important question that arises is “If both of them have by large have similar provision than what are the differences and why it is necessary?”
For the first question, the answer as already been given in the initial part of this article is, because the modern Hindu Law following much of the reminiscence of our ancient culture consider a marriage as a spiritual sacrament that is pure and for this reason our courts despite having a resolve of divorce have instrumented Judicial Separation which lets the spouses think on their final decision to make or break their relationship. It is, for this reason, Judicial Separation becomes necessary.
For the second question, despite inheriting much of its characteristics from the divorce laws, a judicial separation is as different from the former as milk to water. Certain imminent differences that are important to be noted are as follows –
1. In case of divorce, a spouse can file a suit only after 1 year of marriage (Exception is “extreme hardship”) but for a judicial separation, there is no such time limit.
2. Both Divorce and Judicial Separation are two different steps in cases of dissolution of marriage wherein the former is preceded by the later.
3. Judicial Separation is only a temporary breakage of mutual rights whereas with divorce the marriage comes to an end with no further resolve.
4. In case of Divorce, all the grounds mentioned under Section 13 could be made a ground for divorce but in case of judicial separation under Section 10 of the Hindu Marriage Act, Conversion and Absence for a period of more than 7 years with no whereabouts cannot be made ground for a decree.
5. Lastly, in Judicial Separation the spouses do have an opportunity to re-conciliate but in a divorce, they lose this privilege as their relationship comes to a legal end.
In the case of Prakash Chandra Verma v. Prakashwati[x] the Allahabad High Court through Justice B.N. Katju also enunciated similar differences between divorce and judicial separation for the ease of understanding. Thus though Judicial Separation and Divorce legally have a similar character with almost similar means, but on considering their ends, they are poles apart.
Thus, the tool of Judicial Separation in its totality do give the parties to an almost broken marriage an opportunity to think for the one last time before taking their final decision concerning their matrimonial bond. The idea behind it is truly very noble and is much influenced by our culture of considering a marriage like a sacrament which could not be dissolved. Though with the changing times, dissolution of marriages has increased rapidly but a tool like this has efficaciously tried to resolve certain stimulated action and have prevented breaking up of families thus achieving its goal and thus maintaining the purity of the bond of marriage.
Frequently Asked Questions
What is Judicial Separation?
Judicial Separation is a mechanism devised by the Indian judicial system which could be referred to as a “quasi divorce”. It is a period of non-cohabitation which spans for 1 year wherein both the spouses get some time to introspect their about their relation and mend their ties.
By what laws Judicial Separation is governed?
Under Hindu Marriage Act, Section 13 governs cases of Judicial Separation.
Is there as time frame after which a suit for Judicial Separation could be filed?
Unlike divorce, Judicial Separation does not have a buffer period of 1 year and a suit for the same can be filed any time.
What happens when a decree of judicial separation is given?
After the decree the spouses get a period of 1 year wherein, they have to live separately and during this time they can contemplate on their relation to either mend it or dissolve their marital bond by way of divorce once the 1 year period ends.
Can a wife get maintenance during the period of judicial separation?
Indeed, a wife can get maintenance during the period of judicial separation if she is unable to sustain herself on her own. Refer Rohini Kumari v. Narendra Singh[xi], wherein the court had observed a wife’s right on maintenance.
Edited by Shikhar Shrivastava
Approved & Published – Sakshi Raje
[i] Subbarama Reddiar v. Sakaswathi Ammal, (1966) 79 LW 382 (Mad) (DB).
[ii] M. Jasmine Devapriya v. A. Stephen Dhanraj, 2017 SCC OnLine Mad 26884.
[iii]Ratna Manjari Das v. Dr. Bhaskar Chandra Das, 1979 SCC OnLine Ori 115.
[iv]Rohini Kumari v. Narendra Singh, (1972) 1 SCC 1.
[v] Trimbak Narayan Bhagwat v. Kumudini Trimbak Bhagwat, AIR 1967 Bom 80.
[vi]Hirachand Srinivas Managaonkar v. Sunanda, (2001) 4 SCC 125.
[vii]Madhukar Bhaskar v. Saral, (1971) 74 Bom. L.R. 496.
[viii]Robasa Khanum v Khodadad Bomanji, (1946) 48 BOMLR 864.
[ix]Krishna Bhattacharjee v. Sarathi Choudhary, (2016) 2 SCC 705.
[x]Prakash Chandra Verma v. Prakashwati, 1983 All LJ 766.
[xi] Supra note 4.