The concept
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. 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.
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.
The following grounds on which
Judicial Separation can be granted:
• Cruelty – Either of the spouse or
both are cruel for one another.
• Desertion – Either of the spouses
is not alive and is missing since seven years and above.
• Adultery – Either of the spouses
is being cheated upon by other spouse. In case a husband or a wife knows that
their respective spouse is married and that the other person is alive during
this petition; then the grounds for judicial separation strengthens.
• Forced conversion of religion –
Either of the spouses is forcing the other one to change and convert his/her
religion.
• Incurable diseases such as
leprosy, cancer, Ebola, etc…
• Insanity or abnormality – Either
of the spouses is not in a sound condition.
• Venereal or sexual diseases –
Either of the spouses is suffering from sexual diseases such as HIV, AIDS,
Genital Herpes, Syphilis, etc…
• Rape, Sexual Harassment,
Molestation, Bestiality and Sodomy.
• Renunciation of the world by
either of the spouse on religious or spiritual grounds.
• Child marriage – Either of the
spouses is married without his/her consent before attaining 18 years of age.
Additional
grounds for the wife to claim justice
Illustration- ‘A’ and ‘B’ are the
husband and wife for 5 years and they are happy with their family. Suddenly ‘A’
remarried another woman ‘C’ without the consent of his 1st wife ‘B’ and ‘C’
also did not have any idea that ‘A’ is married earlier. When ‘B’ and ‘C’ got to
know about this. ‘B’ can file a petition for judicial separation.
·
Rape, sodomy
or Bestiality [Section 13(2)(ii)]- 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.
Repudiation of marriage/A option of
puberty [Section 13(2)(iv)]- If a girl’s marriage happened before attending 15
years of age, then, she has a right to claim judicial separation.
Illustration- There is a girl of 14
years old and she is from a tribal area. There, child marriage is a very common
nature; her parents give her as a present to the bridegroom without her
consent. After marriage, 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. In this case,
she filed a petition for judicial separation because of her below age.
Filing
petition for Judicial Separation
Any spouse who is hurt by another
spouse, can file a petition for Judicial Separation in a District Court under
Section 10 of the Hindu Marriage Act, 1955 and the following should be
satisfied:
• The marriage between the husband
and wife should be celebrated properly under Hindu marriage Act.
• The respondent should be settled
in the jurisdiction of the court where the petitioner filed the petition.
• The husband and wife lived
together for a particular period of time before the filing of petition.
Every petition should according to
Order VII Rule 1 of the Civil Procedure Code, 1973 must contain:
• The date and place of marriage.
• The person should be a Hindu, by
his/her affidavit.
• Name, status, address of both the
parties
• Name, DOB and gender of
children(if any).
• Details of litigation filed before
filing the decree for judicial separation or divorce.
• For the judicial separation, the
evidence should prove the grounds.
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.
---Nivethi Natarjan
