In India, marriage is considered as one of the best parts of a man and woman. On the other hand, Judicial separation and divorce are the worst moments of life. According to the Hindu religion, marriage is considered as a permanent relationship between the husband and wife which is valid not for the present, but for a lifetime. That is why the marriage is performed by following all rituals given under our religions. However, it can be determined that marriage in ancient times and today time is taking different turns in the life of spouses. Many issues are occurring in day-to-day life during the tenure of marriage. Thus, the Hindu Marriage Act was introduced to give the justifiable right to married persons and the act also gives the right to revoke the marriage between husband and wife. Here, we are going to talk about the Grounds for judicial separation which is given under the law.
Table of Contents
What is Judicial Separation?
The judicial separation under Hindu law is given under the Hindu Marriage Act, 1955, in which, the spouses give one more chance to their marriage before going on the divorce proceedings. It is a decree passed by the competent court in which, both husband and wife live separately for a specific period and get the time to resolve their issues and make the effort to save their marriage. It doesn’t take the legal status of husband and wife. The provisions of the judicial separation have been taken by the legislature because marriage is considered a “Hindu sacrament” under the law, so it becomes the duty of the court to prevent the breakdown of the relationship bond between two families.
Section 10 of the Hindu Marriage Act, 1955
The husband or the wife can seek Judicial separation under Section 10 of the Hindu Marriage Act, 1955, and those who are married under the Hindu Marriage Act,1955. The Separation can be claimed by filing a petition in the competent court for judicial separation. Once the court passes the order for separation, the spouses are no longer bound to cohabitation and both are allowed to live separately.
Grounds for judicial separation under Hindu law
After knowing about the concept of judicial separation, the question arises in the mind what are the grounds of judicial separation? Or, what are the circumstances where judicial separation can be granted?
Grounds for a Judicial Separation
- Adultery
- Cruelty
- Desertion
- Conversion/Apostasy
- Unsound mind
- Leprosy
- Venereal Disease
- Renounced the World
- Civil death/Presumed death
- Bigamy
- Rape, sodomy or Bestiality
- Repudiation of marriage option of puberty
Section 10 of the Hindu Marriage Act, either of the spouses can file a petition in the court for judicial separation based on these grounds. So, let’s discuss each ground given under Section 13 of The Hindu Marriage Act, which is important for granting the decree of judicial separation.
Adultery
In simple, words, if any of the spouses whether the husband or wife, voluntarily( with his/her choice) gets physical with any other person (after the marriage) except his/her partner to whom he or she is married, is called adultery. If any of the spouses did this, the aggrieved party has the right to file the petition in the court. Section 497 of the Indian Penal Code defines Adultery.
Case– Revathi vs. Union of India and Ors
Cruelty
Cruelty is when a spouse treats his or her spouse with cruelty and causes mental or physical pain after the marriage between both spouses. The aggrieved party who faces the cruelty can seek for the decree of separation.
Case– Shyamsundar Vs. Santadevi
Desertion
If any of the spouses live his their spouse after the valid marriage continuously for not less than two years, without any reason, the other party can file the petition on the grounds of desertion.
Case– Guru Bachan Kaur Vs. Preetam Singh,
Conversion to another religion
If the husband or wife converts his/her religion after the marriage, other than Hindu, the second party can ask for the decree on the ground of conversion.
Case–U Durga Prasad Rao Vs. Sudharshan Swami, APPEAL No.1058 OF 2013
Unsound mind
In the case of an unsound mind or mental disease with one spouse, if it becomes difficult to stay together, in that circumstance, the other spouse can ask for legal separation.
Case– Sm. Anima Roy vs Probodh Mohan Roy on 20 September 1968
Leprosy
If any of the spouses is suffering from an incurable disease, the other spouse has the right to seek the decree of separation.
Do not forget to read our article about the Grounds for Divorce
Venereal Disease
The disease which is incurable and communicable is called venereal disease. If any of the spouses is suffering from venereal disease, the other party can file the petition for judicial separation.
Renounced the World
If any of the spouses renounced the world (took the Sanyaas), then, his or her partner can file the petition for judicial separation.
Not been heard of as being alive for seven years.
If any of the spouses, after the valid marriage had not been heard of that he is alive, for not less than seven years, his or her partner can take the decree of separation.
Bigamy
Bigamy is the state where one person is married to two people at the same time. In this situation, the other party can file the petition for judicial separation on the ground that his or her partner is married to another person.
Guilty of rape, bestiality or sodomy
The wife can file the petition for judicial separation if her husband is guilty in the case of bestiality, rape or sodomy.
Repudiation of marriage
If the marriage of a girl is solemnized before the age of fifteen years, the girl can ask for the decree of separation. It will not affect the petition that the marriage was consummated or not. Read more.
Advantages and Disadvantages of Judicial Separation
There are various Advantages and Disadvantages of Judicial Separation
Advantages of judicial separation
- The decree of judicial separation can be used to take the divorce
- Benefits from the military can be kept.
- It gives some time to the spouses to enjoy life without staying with their spouse.
- It gives them time to the spouse to think that is they want to break down the marriage or not.
- The parties get the chance to take advice from their parents or relatives or any wise person who can advise them for a better future.
Disadvantages of judicial separation
- It is as complex as getting a divorce
- The spouses feel so much stress as divorce
- It can be unnecessary for the relationship
The Important question related to Judicial separation
Can you remarry during judicial separation?
No, none of the parties can remarry during the judicial separation. You have to get a divorce before getting married again.
Is being separated a legal status?
During the separation, both the parties still carry the legal status of Husband and Wife, because they are not divorced yet.
How is judicial separation different from divorce?
Both are different according to the law on many points like the legal status of marriage and the presumption of reconciliation or marriage. So, let’s know the difference between judicial separation and divorce
Difference between judicial separation and divorce:
S. No | Judicial Separation | Divorce |
| 1 | It is defined under section 10 of the Hindu Marriage Act. | The divorce is given under section 13 of the Hindu Marriage Act. |
| 2 | The party cannot marry after the legal separation. | The parties are free to marry any person after the decree of the court. |
| 3 | There are possibilities for reconciliation. | No possibility of reconciliation after the decree of divorce. |
| 4 | The aggrieved party can file the petition at any time after the marriage | The divorce petition can only be filed after the completion of one year of marriage |
| 5 | There is only one stage of judgment if the given ground is satisfied, the decree can be passed | There is a two-step process for divorce, first time for reconciliation, then divorce |
| 6 | It is a temporary suspension of marriage | Divorce brings the marriage to an endpoint. |
| 7 | Parties are still considered to be married to each other. | The parties are no longer considered as husband and wife. |
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Conclusion
The marriage is considered as the sacred relationship between husband and wife in India. But, there should always be an exit path from the relationship when someone is not happy with his partner. The Hindu Marriage Act does not allow spouses to leave the relationship without any valid reason. There must be a valid ground on which the person can file the petition for judicial separation or divorce.