According to old Hindu laws, marriage is formal ceremony and religious tie that can’t be broken. In modern laws, if a person does not want to stay in married life and does not want to extend any longer then he/she can request relief under the Hindu Marriage Act by way of judicial separation. Judicial separation is a medium under the law to give some time for self analysis to both the parties of a disturbed married life.
What is judicial separation?
Judicial separation is a legal remedy to temporary suspends the marriage of husband and wife having strained relations. Law allows them free space and independence to think their future path. Judicial separation allows disgruntled couples to live separately for a specific time and is usually used as a final resort before filing for divorce. Section 10 of the Hindu Marriage Act deals with the provision of judicial separation.
What is Section 10 of the Act?
Section 10 of the Hindu Marriage Act says that either husband or wife can file petition for judicial separation on any grounds of divorce. Once the order of judicial separation has been passed, then it is not obligatory for spouse to cohabit the marriage. However court can cancel the decree of judicial separation on application made by any party to the petition on satisfaction of truth of the statements.
What are the grounds?
The following grounds are available for judicial separation under Hindu Marriage Act, 1955:-
• Cruelty: Cruelty can be either physical or mental harassment. If spouse is inflicted with physical, mental, emotional and financial pain etc. then he/she can file petition for judicial separation under this ground.
• Desertion: Desertion is a complete refusal of matrimonial alliance and obligations. If the spouse left the other spouse for any reason without informing him or her then the other spouse can file petition for judicial separation. Desertion period must be of 2 years.
• Adultery: If spouse has been in an adulterous relationship then other spouse can get legal separation on this ground.
• Conversion: If any spouse gets converted into any other religion other than Hindu, then the opposite spouse can file for judicial separation.
• Unsoundness of mind: If any spouse in a marriage is suffering from any mental disease which is difficult to live for other spouse with that spouse. The other spouse can get relief by filling petition for judicial separation.
• Venereal disease: If spouse is suffering from any venereal disease which is communicable in nature then in that situation other spouse can seek relief on this ground. It is important to mention here that now leprosy is not a ground for divorce and judicial separation as per latest personal laws amendment in 2018.
• Renunciation of the world: When a person has given up the world and leading a holy life then he/she is considered as civil dead. If a spouse renounces the world to live a holy life then his/her partner can file legal separation.
• Civil Death: When the whereabouts of any person is not known for atleast 7 years then he/she is presumed to be dead in the eyes of law. It is also called civil death. This is also a ground for legal separation.
• Additional grounds only available to wife: There are some additional grounds which are only available to wife to seek legal separation. These are if husband is guilty of rape, sodomy, bestiality and bigamy then wife can opt for legal separation. If decree or order has been passed by the court for maintenance to wife and they have not been living together for more than 1 year then wife can resort to the legal separation. Wife can also file legal separation if she was married before 15 years of age and refuse to accept the marriage after attaining that age. However, such refusal must be made before the age of 18 years.
Where to file the petition?
Spouse can file petition for judicial separation at one of the following places:-
• Where the marriage was solemnized.
• Where the both husband and wife last resided together.
• Where the petitioner is living currently.
• Where is respondent is living or carries on its business.
How judicial separation is different from divorce?
Even the grounds for judicial separation and divorce are same, but these two matrimonial remedies are different. In judicial separation both spouse are allowed to live separately but marriage still exists, on the other hand in divorce marriage is dissolved and both spouse are no longer husband and wife. The other major difference is that judicial separation can be filed at any time after marriage. But the divorce petition can be filed only after the expiry of one or more years of marriage.
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. Seeking divorce is a very tough decision in the life of married couple. In order to evade such tough situation and to provide some space to rethink about the relationship, the Hindu Law provides the remedy of legal separation. People who are Hindus as per the Hindu Marriage Act, 1955 can seek relief from strained relations in their marriage by filling legal separation.
Associate at Aggarwals & Associates, S.A.S. Nagar, Mohali