ASSIGNMENT

FAMILY LAW II

NAME: ANKITA PUROHIT

DIV: E ROLL NO.: 13
SUBJECT: FAMILY LAW II ASSIGNMENT
TOPIC: JUDICIAL SEPARATION
PROFESSOR: PROF. ASHOKRAJ MOHOD
S.Y.L.L.B SEM III
GOVERNMENT LAW COLLEGE

  
 INDEX

Sr. Particulars Pg. No

No
1. Introduction 2

2. Judicial Separation Under Hindu Marriage Act, 1955 2-3

3. Grounds for Judicial Separation 3-12

4. Additional Grounds For Judicial Separation 13-14

5. Effect of Decree of Judicial Separation 14-15

6. Distinction between Judicial Separation and Divorce 15

7. Conclusion 16

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 JUDICIAL SEPARATION UNDER HINDU LAW

I. INTRODUCTION

 Judicial Separation is an alternative to divorce, through which bo19th the parties to

marriage are given time to resolve their issues and make efforts to save their failed
marriage by living separately. Judicial separation doesn’t take away the status of
legally wedded husband and wife. This provision has been adopted by the Indian
legislature because marriage is considered as a ‘sacrament’ under Hindu Law and it is
the duty of the Court to prevent breakdown of such a union.

 Judicial Separation is a medium under the law to give some time for self-analysis to
both the parties of a disturbed married life. Law gives a chance to both the husband
and wife to rethink about the extension of their relationship while at the same time
guiding them to live separately. By doing this, the law allows them the free space and
independence to think about their future path and it is the last option available to both
the spouses for the legal breakup of the marriage.

II. JUDICIAL SEPARATION UNDER HINDU MARRIAGE ACT, 1955

 Section 10 of the Hindu Marriage Act, 1955 provides the Judicial Separation for both
the spouse, those who are married under the Hindu Marriage Act, 1955. They can
claim the relief of Judicial Separation by filing a petition. Once the order is passed,
they are not bound to have cohabitation.

 A judicial (or legal) separation is one which permits the parties to a marriage to live
apart. If a decree for judicial separation is passed by a competent court, it is no longer
obligatory for either party to cohabit with other.

 Such a decree does not, however, dissolve the marriage or sever the matrimonial ties
between the parties. Yet, it is equally true that certain mutual rights and obligations
arising from the marriage are, so to say, suspended when such a decree is passed.
Under the Act, a Petition for divorce can be presented on the ground that cohabitation

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 has not been resumed for a period of one year (or more) after passing the decree of
judicial separation.

III. GROUNDS OF JUDICIAL SEPARATION

 Section 10 of Hindu Marriage Act, 1955 provides for judicial separation. It provides
that either party to a marriage can file a petition before the Court for such a relief on
any of the following grounds:

(i) ADULTERY:

 The other party has, after the solemnization of marriage, had voluntary sexual
intercourse with any person other than his or her spouse.

 Adultery has been one of the principal grounds for relief in the matrimonial law of all
legal systems. The term adultery has been defined as consensual sexual intercourse
between a married person and another of the opposite sex during the subsistence of
the marriage.

 An attempt to commit adultery does not, however, amount to adultery, and cannot,
therefore, be the basis of a petition for judicial conduct separation.

 Direct evidence of adultery is not necessary, and the nature of the act is such that it
would not even be reasonable to expect any direct evidence. The Courts have,
therefore, observed that circumstantial evidence is all that can be expected in such
cases. The time and place of adultery, therefore, need not be proved. (Barker v.
Barker, A.I.R. 1955 Mad. 103)

 Thus, the proof which is required to prove adultery is not proof "beyond a shadow of
doubt'. As stated in one English case, such proof “need not reach certainty, but must
carry a high degree of probability “. (Miller v. Minister of Pensions(1947) 2 All E.R.
372)

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  Confessions on admission of adultery and admissible in connection with other
relevant evidence on the charge of adultery. However, such confessions, though
admissible, looked upon with some measure of the trust, and are normally not taken at
face value by the court.

 Case-  Revathi Vs. Union of India and Ors 

In this case, the Court held that Section 497 of IPC is prepared like, a husband cannot
prosecute the wife for defiling the sanctity of the married tie by the charge of adultery.
The law does not permit the husband of the offending wife to prosecute his wife and
the wife also has not permitted to prosecute the offending husband for being disloyal
to her. Therefore, both the husband and wife have no right to strike each other with
the weapon of criminal law.

(ii) CRUELTY

 Cruelty in simple sense can be defined as “When one of the spouses treats the other
with aggressive nature, which causes danger to life or health either physically or
mentally.

 After the aforesaid amendment in 1976, cruelty became a ground of for judicial
separation as well as for divorce as under: "The other party has, after the
solemnization of the marriage, treated the petitioner with cruelty";

 The word cruelty was not defined in the Act but in Section 10 of the Hindu Marriage
Act, 1955 which dealt with judicial separation. The word cruelty was used in a
restricting sense because it was provided that either party to a marriage may present
petition praying for a decree for judicial separation on the ground that the other party,
after solemnization of the marriage, has treated the spouse with such cruelty as to
cause a reasonable apprehension in the mind of the petitioner that it will be harmful or
injurious for the petitioner to live with the other party.

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 Cruelty may be brutal or subtle. It may be physical or mental. It may be by words or
by gestures or even by mere silence. Cruelty refers to "conduct of such a character as
to have caused danger to life, limb or health (bodily or mental) or as to give rise to a
reasonable apprehension of such danger." (Russel v. Russel, 1897 A.C., 395)

 It may not be possible for the courts to define mental cruelty exhaustively but can
broadly be defined as the conduct which inflicts upon the other party such mental
pain and suffering as would make it not possible for that party to live with the other.
In other words, mental cruelty must be of such a nature that the parties cannot
reasonably be expected to live together. The situation must be such that the wronged
party cannot reasonably be asked to put in with such conduct and continue to live with
the other party. Now mental cruelty need not be proved to be such as to cause danger
to the health, limb or life of the petitioner.

 Cruelty should be of the type which will satisfy the conscience of the Court that the
relationship between the parties had deteriorated to such an extent that it has become
impossible for them to live together without mental agony, torture or distress.

 The following are some of the conducts which have been held to constitute mental
cruelty-

o demand of dowry by the husband's parents with the support of the husband
o wife abusing the husband and his parents in foul language and picking up quarrels.
o heavy drunkenness or addiction to drugs resulting in intemperate
o violent behaviour and acts tending to Injure the health
o wife not coming to see her husband in the hospital who was seriously injured
o husband having a love affair with another woman and keeping her in the same
house.
o husband impotent qua his wife
o wife stating that her husband may be killed in an accident so that she may get
insurance money constant insults abuses and accusations of adulterous character
which make married life impossible.

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  Case- Shyamsundar Vs. Santadevi – in this case after the marriage, the wife was
badly harmed by her husband’s relatives and the husband also stood lazily, taking no
steps to protect his wife.

The Court held that the intentional neglect to protect one’s own wife amounts to
cruelty on the husband’s part.

(iii) DESERTION

 The term desertion means desertion of the petitioner by the other party to the marriage
without reasonable cause and without the consent or against the wish of such party, and
includes the wilful neglect of the petitioner by the other party to the marriage.

 When one of the spouses of the marriage abandoned the other without a reasonable
cause and consent has deserted the spouse for a continuous period of not less than 2
years immediately preceding the presentation of the petition;

 It is now well-established that two factors must co-exist to establish desertion:

(i) Firstly, there must be the factum, i.e., the actual separation, and
(ii) Secondly, this must be accompanied by the animus deserendi, i.e., the intention to
desert.

Both these ingredients must continue throughout the statutory period (i.e. two years or
more).

 The leading Indian case on desertion is Bipin Chander v. Prabhawati (1956 S.C.R.
838), where the Supreme Court discussed the term, quoting extensively from
Halsbury's Laws of England. The principles laid down in this case have also been
followed by later decisions of the Supreme Court and other Courts.

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 In Halsbury's Laws of England, the position is well-summarised in the following
words:

"In its essence, desertion means the intentional forsaking and abandonment of one
spouse by the other without that other's consent and without reasonable cause. It is
a total repudiation of the obligations of marriage. There can be desertion even
without previous cohabitation by the parties or without the marriage having been
consummated"

 It is now well-established that proof of the factum of separation, which is one of the
essential ingredients of the matrimonial offence of desertion, does not consist merely
in ascertaining which spouse eft the home first. It is now well-accepted by the Courts,
both in India and in England, that a spouse may be guilty of such misconduct as
would render the continuance of marital relations so unbearable, that the other spouse
is compelled to leave the matrimonial home. In such a case, it is the former, and not
the latter spouse, who is guilty of desertion. This is sometimes also referred to as
constructive desertion.

 Thus, it has been held that if a husband creates circumstances which compel the wife
to leave the house, it is the husband, and not the wife, who is guilty of desertion.
(Asha Handa v. Baldev Handa, A.I.R. 1985 Del. 76)

 Case- In the case,  Guru Bachan Kaur Vs. Preetam Singh, the husband filed a
petition for divorce after 7 years of declared desertion and never understood the
problems of the wife who was also a working woman. But the wife was willing to live
with her husband at her house in the place of her service.

The High Court held that there is nothing like mutual desertion. One party has to be
guilty in desertion.

(iv) CONVERSION

Conversion, namely, that the other party has ceased to be a Hindu by conversion to
another religion;

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 The term Hindu, as used in this clause, must be understood in the wide sense given to
it in S. 2 of the Act, and would therefore and include all Hindus, Buddhists, Jains and
Sikhs. Thus, a person will continue to be a Hindu even if he opts for conversion from,
say, the Sikh to the Buddhist or Jain faith.

 Further, a person does not cease to be a Hindu merely because he is an ardent admirer
of some other religion or if he professes a theoretical allegiance to such other religion.
If, however, he has abdicated the Hindu faith by a clear act of renunciation and
formally converts himself to the other religion, he would cease to be a Hindu under
this clause.

 Religion is a very sensitive and personal aspect of individual's life and the constitution
of India guarantees the freedom of conscience and religion to people of all
denominations. Thus, a person is free to profess any faith or relinquish his faith of
birth and convert to another religion. However, in view of the diversity personal laws
in our country, upon apostasy the personal law of the convert words. Conversion of a
spouse gives to the non-convert spouse, a ground for matrimonial relief.

 The logic underlying the grant of relief in case of conversion is, however, not merely
a legal one, viz., that after conversion, the convert will be governed by different
personal law, but also because conversion could mean a radical change in the
personality of the convert. The event is often very much akin to a breakdown of the
marriage and goes to the root of conjugal life of the spouses.

 Case - Durga Prasad Rao vs. Sudharshan Swami, it was observed that in every
conversion case, formal rejection of religion or operation of the sacrificial ceremony
is not essential. Therefore, in the case of conversion, the question of fact arose.

 STATUTORY PROVISIONS FOR CONVERSION

 Under S. 13(1)(ii) of the Hindu Marriage Act, 1955:

Any marriage solemnized, whether before or after the commencement of this Act,
may on a petition presented by either the husband or the wife, be dissolved by a

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 decree of divorce on the ground that the other party has ceased to be a Hindu by
conversion to another religion.

 This is available as a ground for judicial separation also. Prior to 1976, the grounds
for divorce and judicial separation were different and change of religion was not a
ground for judicial separation. After the 1976 Amendment. The grounds available for
divorce and judicial separation are the same and hence conversion is now a ground for
judicial separation as well.

 In Madanan seetha Ramalu v. Madanan vimla, a husband was granted divorce on

his wife converting to Christianity after marriage.

 It is important to note that conversion does not automatically affect a marriage tie, and
secondly, it is the non-convert spouse only who can seek matrimonial relief on this
ground. A spouse who gives up Hinduism and adopts another faith cannot go to the
court and seek any relief on this ground. This is banned even under the provisions of
S. 23(1)(a), viz., that the petitioner cannot be allowed to take advantage of his or her
own wrong or disability.

 Under the Hindu and Maintenance Act, 1956, a Hindu wife whose husband has ceased
to be a Hindu by conversion lo another religion, has a right to stay separately from
him and seek maintenance.

(v) INSANITY

 Insanity, namely that the other party has been incurably of unsound mind, or has
been suffering continuously or intermittently from mental disorder or such a kind and
to such an extent that the petitioner cannot reasonably be expected to live with the
other party;

 Incurable unsoundness of mind or continuous mental disorder of such dimension that

the other spouse cannot reasonably live together.

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  Further, the terms “mental disorder” and “psychopathic disorder” have also been
defined as follows:

o The expression “mental disorder” menas mental illness, arrested, or incomplete

development of mind, psychopathic disorder or any other disorder or disability of
mind, and includes schizophrenia.

o The expression “psychopathic disorder” means a persistent disorder or disability

of mind, which results in abnormally aggressive or seriously irresponsible conduct
on the part of the other party, and whether or not it requires or is susceptible to
medical treatment.

 Under S. 5, one of the essential conditions of a valid Hindu marriage is that neither
party should be an idiot or lunatic at the time of marriage. This section deals with
supervening unsoundness of mind and makes it a ground for ‘judicial separation’.

 The Supreme Court has cautioned that mere branding of a spouse as schizophrenic is
not sufficient. The degree of mental disorder of the spouse must be proved to be such
that the other spouse cannot reasonably be expected to live with him or her. (Gupta v
Gupta, A.I.R. 1988 S.C. 2260)

(vi) LEPROSY

 Leprosy, namely that the other party has been suffering from a virulent and incurable
form of leprosy;

 Leprosy was “the dreaded disease” once upon a time. However, modern medicine has
taken great strides in the direction of its treatment, and with the new drugs that are
now available , a scientific approach is warranted when answering the question
whether in any given case, leprosy is virulent or not.

 Before the 1976 Amendment, it was necessary that such leprosy should have existed
for at least three years before the presentation of the petition. This minimum
requirement of three years is no longer necessary.

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  If any spouse suffering from any disease like leprosy, which cannot be recovered, then
the other party can file a petition for judicial separation because he/she cannot waste
their own time due to the sufferer.

 Illustration- ‘A’ a sufferer of an abnormal disease and ‘B’ is the wife of ‘A’. If ‘A’
is suffering from a disease that is incurable and the doctor also cannot understand the
disease. In this case, ‘B’ can file a petition for judicial separation if she doesn’t want
to continue with her husband.

(vii) RENOUNCING THE WORLD

 Renouncing The World, namely, the other party has renounced the world by entering
any religious order;

 Under the ancient Hindu Law, if a person entered a religious order, renouncing all
worldly affairs, his actions would tantamount to civil death.

 Two essential conditions have to be satisfied before a Court under this clause, viz:-

1) Such Person must have renounced the world.

2) Such Person should have entered some religious order.

Both these requirements must co-exist, and the presence of one of them will not
suffice.

 It must be remembered that a person cannot be said to have adopted a religious order
merely by declaring himself to belong to such order. Thus, for example, if a person
calls himself a sanyasi, puts on clothes of a particular colour, and shaves his , he does
not thereby become a sanyasi. He will be deemed to have entered that order only if he
has also performed necessary rites and ceremonies prescribed for this purpose by the
shastras.

(viii) VENERAL DISEASE

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 Veneral Disease, namely, that the other party has been suffering from veneral disease
in a communicable form.

 If any party to a marriage or a spouse has any type of disease which is incurable and
communicable and the spouse does not know about the fact at the time of marriage,
then it could be a valid ground for the spouse to file petition for judicial separation.

 Illustration- ‘A’ is suffering from an abnormal disease that is spread by

communication. The disease which is irrevocable. In this case, ‘B’ the wife of ‘A’ can
file a petition for the judicial separation in good faith for their future of the two
children.

(ix) NOT HEARD OF

 The other party has not been heard of as being alive for a period of seven years or
more by those persons who would naturally have heard of him/her, had the party been
alive;

 It is well- established legal presumption that a person can be taken to de dead, if he is

not heard of for a period of seven years or more, by those persons (like his near
relatives and friends) who would have naturally heard of him had he been alive. This
is a presumption of legal convenience, and has been adopted by the Indian Evidence
Act also.

 Under this clause, the fact that for a long period of seven years (or more), the
Respondent has been absent from the Petitioner, and the Petitioner (and other close
relatives) have not heard of him a all, should normally be sufficient evidence that such
a person is dead, and a divorce ought to be granted to the Petitioner.

 It is to be noted that a decree of divorce granted under this clause is valid and
effective, even if it is subsequently discovered that the Respondent was in fact alive
when the decree was passed.

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 IV. ADDITIONAL GROUNDS FOR THE WIFE TO CLAIM JUSTICE

In case of wife, she is entitled to the aforesaid relief of judicial separation on

following two additional grounds also:

(i) BIGAMY

 Bigamy, namely, that in the case of a marriage solemnized before the commencement
of the Act, the husband has married again before such commencement, or that any
other wife of the husband, married before such commencement, was alive at the time of
the Petitioner's marriage.

 It means if the husband is remarried while he is already married, both of his wives have
a right to claim the petition for judicial separation with a condition that, the other wife
is also alive at the same time of filing.

 This ground can obviously exist only in the case of a marriage solemnized before the
Act came into force. As regard marriages solemnized after the Act, under Ss. 5 and 11,
such marriages would be bigamous and void ab initio, and there would naturally be no
question of divorce in such cases.

 It is also necessary under this clause that the other wife should be alive at the time when
the Petition is presented to the Court. It will be seen that this remedy is available to a
wife, irrespective of the fact that the other marriage had taken place before or after the
marriage of the petitioner wife with him. Thus, the remedy is available to the first as
well as the subsequent wives.

(ii) RAPE, SODOMY OR BESTIALITY

 The husband has, since the solemnization of marriage, been guilty of rape, sodomy
or bestiality;

 Rape refers to the ravishing of a woman, whereas sodomy and bestiality refer to
carnal intercourse by a man against the order of nature with another man or with an
animal, respectively.

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  The wife has a right to file a petition for judicial separation if her husband is guilty of
charges like rape, bestiality or sodomy after the marriage.

 Illustration- ‘A’ and ‘B’ are the husband and wife from 3 years, if the husband ‘A’
raped any other woman and he is found guilty for that, then, in this case, the wife ‘B’
can file the petition for judicial separation.

(iii) COHABITATION BETWEEN THE PARTIES

A decree or order has been passed against the husband awarding maintenance to the
wife under section 18 of Hindu Adoptions and Maintenance Act, 1956 or in
proceeding under Section 125 Cr.P.C and since the passing of the decree or order,
cohabitation between the parties has not been resumed for one year or upwards;

(iv) REPUDIATION OF THE MARRIAGE

 Repudiation of Marriage, namely, that 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.

 For the purpose of this ground, it is immaterial whether the marriage was
consummated or not. This provision now enables a wife in such a case to obtain
judicial separation/ divorce, provided that she has repudiated the marriage before she
becomes 18 years old.

V. EFFECT OF DECREE PASSED FOR JUDICIAL SEPERATION

 As stated above, when a decree for judicial separation has been passed, it is no longer
obligatory for the Petitioner to cohabit with the Respondent. However, the Court has
the power to rescind such a decree on an application by either party, if it considers it
just and reasonable to do so.

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 It may be noted that the statutory relief of judicial separation is a discretionary one.
The Court is not bound to grant such relief only because one of the prescribed grounds
exists. Thus, if the Petitioner has connived at the adultery of the Respondent, the
Court may refuse to pass a decree under S. 10. Similarly, if desertion by the
Respondent is due to the Petitioner's cruelty, such relief may be refused by the court.

VI. DISTINCTION BEWTWEEN JUDICIAL SEPARATION AND DIVORCE

Sr. JUDICIAL SEPARATION DIVORCE

No.

It is provided under Section 10 of It is provided under Section 13 of

1.
the Hindu Marriage Act, 1955. the Hindu Marriage Act, 1955.

A petition for judicial separation can be A petition for divorce can be filed only
2.
filed at any time after marriage. after one or more years of the marriage.

It only temporarily suspends the

3. It is the end of the marriage.
marriage.

The husband and wife must be living in

An act of adultery is a very big ground,
4. an adulterous relation then only a party
by which anyone files the petition.
can file for divorce.

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VII. CONCLUSION

 A marriage is considered as a sacred relation in our nation but a person should have an
exit from a relationship when he/she is not happy with that relation. People have faith
towards the Hindu Marriage Act, 1955 that they can seek relief from the marriage by
filing a divorce.

 This Act does not allow for leaving a relationship without any valid reason. There
should be particular grounds on which the spouse can file a case for judicial
separation or divorce.

 This Act has a great rule to solve the disputes between the spouses and free them from
marital ties.

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