Judicial Separation Under Hindu Marriage Act 1955

Judicial Separation Under Hindu Marriage Act 1955

As we know section 10 of the Hindu Marriage deal with Judicial Separation THIS SECTION lays down.-

Judicial Separation Under Hindu Marriage Act 1955

Section 10 (1) said that "Ether party to marriage, weather solemnized before or after the commencement of this Act, may present a petition praying for a decree for judicial Separation on any of the ground Specified in sub-section (1) of section 13, and in the case of a wife also or any of the grounds specified in subsection (2) therefore as ground on which a petition for divorce might have been presented."

Section 10(2) "Where a decree for Judicial separation has been passed, it shall no longer be obligatory for the petitioner to cohabit with the respondent, but the court may on the application by petition of ether party and on being satisfied of the truth of the statements made in such petition rescind the decree if it considers it just and reasonable to do so."

Judicial separation is a state of relation between husband and wife when they are under no obligation to live together. It is temporary suspension of marital rights between the spouses as a result of decree passed by the court on any one of the ground mentioned in this section.

During the course of judicial separation, either the party may be entitled to get maintenance from the other if situation so warrants. But during this period the husband or the wife would no acquire the competence to marry afresh. The right of fresh marriage would be available to them only after the dissolution of marriage.

Section 10 provides that party may present a petition for praying decree of divorce or judicial separation or any of the grounds specified in sub section (1) of Section 13. In case of wife also on any of the grounds specified in sub section (2).

Judicial Separation or Divorce can be obtained under following Grounds

Grounds Available to Husband and Wife both

(a) Adultery:- After marriage where the other party had voluntary sexual intercourse with any person other than his or her spouse. Thus even a single act of adultery may be sufficient now for relief under this head.

(b) Cruelty:- Where the other party has treated the spouse with cruelty.

(c) Desertion:- Where the other party has deserted the spouse for continuous period of not less than two years immediately preceding the presentation of the petition.

The essential ingredients of desertion in order that it may furnish a ground for relief are-

1. The fact-um of separation.

2. The intention to bring cohabitation permanently to an end- animus deserendi.

3. The element of performance which is a prime condition requires that both these essential ingredients should continue during the entire statutory period of not less than two years.

(d) Conversion:- When the other party has ceased to be a Hindu by conversion to another religion.

(e) Unsoundness of Mind:- Where the other party has been incurable unsound mind, or has been suffering continuously from mental  disorder of such a kind and to such an extent that the other spouse cannot be expected to live with the other.

(f)  Leprosy:- Where the other party has been suffering from an incurable form of Leprosy.

(g) Venereal disease:- Where the other party suffering from venereal disease in a communicable form.

(h) Renunciation of World :- Where the other party has renounced the world by entering any religious order.

(i) Presumed death:- Where the other party has been heard of as being for a period of seven years or more by those person who would naturally  have heard of it had that party been alive.

(B) Additional Grounds to Wife

The section has further laid down additional grounds to wife for the Judicial separation of marriage by a decree of divorce on the Grounds of:-

(1) Bigamy:- in the case of any marriage solemnized before the commencement of this act, that the husband had married again

And wife of the husband married before was alive at the time of second marriage called bigamy. It is also a crime and ground to wife for judicial separation of marriage.

(2) Rape, Sodomy or Bestiality:-  That the husband has been guilty of rape or sodomy or bestiality.

(3) Non-resumption of cohabitation after decree or order of maintenance:- Where a suit under Section 18 of the Hindu Adoptions and Maintenance Act or in a proceeding under section 125 of the Code of Criminal Procedure 1973, a decree or order has been passed against the husband awarding maintenance to the wife, cohabitation between the parties has not been resumed for one year or upwards.

(4) Option Of Puberty :- When a women married before the age of fifteen years and she has repudiated the marriage after attaining the age of fifteen years but before attaining the age of eighteen years.

Incidents and effects of Judicial Separation. The following are the incidents and effects of an order of Judicial Separation.

1. That the marriage tie is not dissolved.
2. That after the passing of the decree of judicial separation, the husband and wife are not bound to live together or dine together as judicial separation is separation from bed and board.
3. After the decree of judicial separation it will not be obligatory for parties to cohabit with each other.
4. It is not necessary for them to under go the ceremony of marriage again because their original marriage still subsists inspite of the decree of judicial separation.
5. If he or she will be guilty for bigamy and will be liable for punishment prescribed by Section 17 of this Act.
6. The petitioner, if she be the wife  becomes entitled to alimony from the husband. And if he is husband he can claim maintenance from his wife under section 25 of this Act.
7. The mutual rights and obligations arising from the marriage are suspended and the rights and duties prescribed by the decree are substitute therefore.

This Article Covers all the grounds of divorce or judicial separation. If you have any queries related to this, comment and ask below.

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Written by

Lovely Rawat (Advocate) Now Full Time Blogger