Importance of Judicial Separation and Divorce

Published on : 26/06/2024

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Importance Of Judicial Separation and Divorce

Authored by: Mr. Ram Chandra Achanta,

Law Student

School of Law, Sastra

mailto:chanduachanta2003@gmail.com

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Abstract

In Indian culture, marriage is known as a ritual. It is an unchanging husband-wife relationship shaped by traditions and customs.In the event of a broken marriage, there was no recourse to either party prior to 1955. They had to continue the relationship and the marriage could not be broken.  According to Manu, they cannot tell husband and wife apart, and their marital bond cannot be severed. A marriage can end if it is dissolved by mutual consent, according to the Arthashastra, and the marriage should not be accepted. But Manu doesn’t really trust in the dissolution concept. According to Manu, the death of one partner is the only solution to end the marriage.

In the Hindu Marriage Act, 1955, a clause dealing with the concept of divorce was added. Divorce is described in law as the dissolution of a marriage. In 1955, the Hindu Marriage Act was passed, and things began to change in favour of both sides marrying.Marriage or marital relations must be protected by law for the stated purpose of advancing society's interests. Divorce is only allowed  for  serious reasons, otherwise alternatives are offered.

Today, the parties should not have to stay in a broken marriage and can easily end their marriage relationship through judicial separation or a divorce decree.

The Marriage  (Amendment) Act 1976 makes  grounds for divorce and legal separation general. The parties can choose between two termination procedures. However, the legal consequences of  separation and divorce are different. Divorce puts the last nail in the marriage coffin, and the scope of the agreement between the parties remains legally valid until the separation.

Separation is a legal way  to give both parties in a troubled marriage time for introspection. The law gives husband and wife the opportunity to reconsider the extension of their relationship, directing them to an independent life. By doing so, the law helps them freely and freely consider their future course, and legal termination of the marriage is the ultimate option open to both parties.

Introduction

The purpose of marriage is to create a relationship between a woman and a man. Marriage is a formal ritual according to ancient Hindu law and is a sacred bond that cannot be broken. According to Smritikars even death cannot break the bond between  husband and wife. The purpose of marriage is to enable men and women to fulfil the spiritual tasks of God's life. According to ancient texts, a man without a woman was incomplete,  and a woman without a man is also incomplete. According to existing laws, if a person does not want to continue even in married life and does not want to spend more, he can seek relief under the Indian Marriage  of 1955, through Separation and Divorce Act.

Section 10 – Judicial Separation^[1]

1.“A petition for a decree of judicial separation may be presented by either party to a marriage, whether it was solemnized before or after the effective date of this Act, on any of the grounds listed in sub-section (1) of Section 13 or, in the case of a wife, on any of the grounds listed in sub-section (2) thereof, as grounds on which a petition for divorce might have been presented."

2. “After a judicial separation decree is issued, the petitioner and respondent are no longer required to live together. However, the court has the authority to revoke the decree at any time if it feels that doing so would be just and reasonable, upon request from either party and after confirming the accuracy of the information included in the petition.”

Section 13 – Divorce^[2]

(1) “Any marriage that has been formally closed off whether before or after the effective date of this Act, may be dissolved by a divorce decree for specific reasons upon the presentation of a petition by either the husband or the wife.” 

(2) “A wife may also file a petition to have her marriage dissolved by a divorce decree.” 

The Concept of Judicial Separation under Hindu Marriage Act , 1955.

In India, the courts under their legal rights never grant a full divorce in the first instance when a divorce petition is filed. According to the Hindu belief that marriage is a sacramental relationship that cannot be dissolved, Indian courts  created a tool called legal separation to give both parties time for introspection to avoid ending the marriage through divorce.

Filing Petition for Judicial Separation

Under Section 10 of the Hindu Marriage Act, 1955, any partner who is harmed by another partner can lodge a petition for Judicial Separation before District Judge and the requirements must be fulfilled: ^[3]

1. Under the Hindu Marriage Act, marriage between a husband and a wife should be appropriately observed.
2. In the jurisdiction of the court where the petitioner lodged the petition, the respondent should be resolved.
3. For a specific period before the claim was filed, the husband and wife stayed jointly.
4. Every petition should be according to ”Order VII Rule 1 of the Civil Procedure Code, 1973.”

A judicial separation is implied to be "a court decree requiring a married couple to stop cohabiting but not dissolving the marriage," according to the Collins Dictionary. In short, judicial separation is a legal procedure that allows partners to be apart from one another while maintaining their marital bond. Derived from the English term mensa et thoro, it is a separation granted by a court order to give a troubled marriage some time for reflection. During the period of judicial separation, the parties have the opportunity to learn about the future of their marriage and, if they do not share interests, the legal actions leading to the final settlement of divorce.^[4]

After the drastic changes of 1976, the grounds for divorce remained basically the same under the divorce laws under  Section 13 of the Hindu Marriage Acts. The law of legal separation was first introduced in the Special Marriage Act, which made legal separation a part of the Indian Marriage Act with some amendments in 1970 and 1976.

Where divorce is sought on any of the grounds mentioned in section 13 of the Indian Marriage Act (other than absence of the defendant for more than 7 years or 7 years and conversion), the court may grant a decree in accordance with existing law and after one year both parties can apply for divorce if they do not agree with each other.

There is no definition of  separation in Islamic law, because their marriage is contractual in nature, separation by divorce is likely, but there are some reasons why women should remain separated from their husbands, but that non-marriage is more in nature than divorce.

 If a partner requires judicial separation, the same could be provided on grounds stated under Section 13 of the Hindu Marriage Act, 1955, when the petitioner partner properly demonstrates the adulterous relationship.^[5]

The Concept of divorce under Hindu Marriage Act, 1955

The Indian Marriage Act has a number of clauses regarding legal divorce viz. when a partner can divorce or go to court for divorce. Marriage or cohabitation must be accompanied by some form of protection for the purpose prescribed by law for the benefit of society. Divorce is only allowed for serious reasons, otherwise alternatives are offered.

The Indian Marriage Act is based on the "theory of causation" whereby either aggrieved spouse (section 13(1)) can go to court and seek a divorce.  Section 13(2) provides grounds for a wife to file for divorce in a court of law.

Different theories of divorce

Fault Theory 

According to this theory, a marriage can be dissolved if one party to the marriage is responsible for a crime committed against the other partner through matrimonial crimes. Only the innocent partner can request this solution. The only limitation of this concept is "no one can claim this right of divorce if both spouses are at fault".

According to this theory, a marriage can be dissolved by mutual consent. If the couple gives each other permission to end the relationship, the marriage can be dissolved. But many thinkers criticise this theory because it is morally wrong and promotes quick divorce.

Irretrievable Breakdown

According to this theory, the breakdown of marriage is caused by the breakdown of the marital relationship. A couple chooses divorce as a  last resort, ie. when neither of them can live together again.

No Divorce Petition within 1 year of Marriage

"No Court will entertain the petition of divorce within the one year of the marriage," states Section 14. However, cases involving bigamy and in which the spouse's consent was obtained through deception, fraud, undue influence, etc., may be considered. ^[6]

Divorced Person Remarriage

As per Section 15, no future petition was lodged by either of the partners against the court’s order after the dissolution of marriage and the time for appeal ended. At that point, it is assumed that both partners are the material. The divorced spouse is then permitted to remarry.^[7]

Procedure to file a suit for Judicial Separation or divorce ^[8]

These are the key parts of a petition for judicial separation and divorce, according to Order VII and Rule 1 of the CPC:

• Date and place of marriage,
• Affidavit of being Hindu by both the groups,
• Name, status and resident of both wife and husband.

For ex- in the adultery case, one must provide photographs of facts that the individual has some extramarital affair. Proof of the basis for judicial separation or divorce.

Grounds of divorce and Judicial Separation as per Hindu Marriage Act

Adultery

Adultery is defined as the consensual and mutual involvement of a married person with another person of the opposite sex, whether married or single. Even if the sex between the

husband and his second wife is considered bigamy, the individual is responsible for the adultery.

Under the Hindu Marriage Act, the Marriage Laws Amendment Act of 1976 introduced the concept of adultery. Adultery may not be considered an offence in certain countries. However, in the case of a marriage violation, adultery is regarded as one of the most relevant grounds for pursuing divorce in accordance with the Hindu Marriage Act, or the aggrieved party can demand the remedy, but the sex should be put in place after the marriage that contributes to judicial separation.

The wife found out that her spouse and the adulterer were sharing a room during the night, and additional evidence from the neighbors proving the husband was living together as a husband and wife with the adulteress is strong evidence of adultery. The truth of the matter is that there is very little evidence of adultery.^[9]

The plaintiff and the defendant were married. The husband left the wife in his native place after marriage so that she would finish her education and go to another city for work. Two or three times in a month, he went to meet her. He later learned that his wife committed adultery that is, engaged in sexual activity with his own nephew, watchman, etc. The complainant enters the court on the adultery grounds to apply for divorce and his claim has been admitted and the marriage is ended.^[10]

In Revathi v. Union of India^[11] and Ors, According to the court, Section 497 of the Indian Penal Code was written to prevent a husband from suing his spouse for adultery on the grounds that it violated the sanctity of the marriage pact. Because the law forbids the offended wife's husband from suing her, the offended wife forbids the offending husband from being sued for merely betraying her. Therefore, neither the husband nor the wife may use the criminal law as a weapon against the other.

Cruelty

The concept of cruelty includes both mental and physical cruelties. Physical cruelty implies that one partner injures or causes bodily harm to the other partner. However, because the

partner can be emotionally abused by the other spouse, the definition of mental cruelty was added. Mental cruelty is the absence of goodness that has a negative impact on an individual's well-being.

In Savitri Pandey v. Prem Chandra Pandey^[12], the court ruled that Cruelty was not specified under the Act, but it is considered to be the action of such a kind that harms the petitioner’s life with the respondent in marital affairs. Cruelty is an action that is detrimental to life, organ, or welfare. According to the Act, cruelty occurs when a partner who is comparable to the other person handles the other person in a way that expresses feelings about causing them bodily harm or instills a baseless fear of suffering physical harm, pain, or their own deteriorated health. Emotional or physical abuse are also forms of cruelty.

When another partner behaves in a way that causes mental anguish or raises concerns about the opposite of married life, this is known as mental cruelty. Cruelty thus argues that the petitioner approached the situation with such cruelty as to openly fear for his safety or well-being.”

In Balram Prajapati v. Susheela^[13] Bai, On the grounds of mental cruelty, the petitioner filed for divorce from his wife. He demonstrated how his wife had repeatedly filed false complaints against him, acting in a violent and uncontrollable manner toward him and his family. The petition is accepted by the court, which then grants the divorce due to cruelty.

In Shyamsundar v. Shantadevi,^[14] the wife was seriously wounded by her husband’s family after the marriage, and the husband himself stood dumbly, taking no action to defend his wife. The Court ruled that the deliberate failure to protect one’s wife leads to cruelty on the part of the husband.

Desertion

Parliament has defined desertion in subsection (1) of Section 13, Hindu Marriage Act, 1955:

“The term "desertion" refers to the other party to the marriage abandoning the petitioner without a valid reason, without their consent, or against their desire. It also includes the other party's deliberate neglect of the petitioner”. ^[15]

To put it another way, desertion is described as "the permanent departure or abandonment of one spouse by the other for any justifiable reason without the other's consent."

In Bipin Chander Jaisinghbhai Shah v. Prabhawati^[16], the offence of desertion is a course of conduct that occurs regardless of its duration, but it must occur for a period of at least three years at once before the petition presentation or, in which the offence appears to be a cross-charge, of the response as a basis for divorce. Desertion as divorce ground varies from the adultery statutory grounds and cruelty in that the crime that determines the object of desertion’s motion is not always full, but before the healthy is formed is inchoate. Desertion with the offence is persevering

In Guru Bachan Kaur v. Preetam Singh^[17], The husband filed for divorce after the wife had been declared desertive for seven years, but he was unaware of the working mother's problems. However, the wife was allowed to continue working at home alongside her husband. According to the High Court, there is no such thing as mutual desertion. One person must be at fault for desertion.

Conversion

Section 13(1)(ii) discusses conversion. If one of the partners changes his religion without the permission of the other partner, the other spouse may apply to the court for a divorce or Judicial Separation remedy.

In Suresh Babu v. Leela^[18], The husband marries a different woman and converts to Islam. Here, Leela, the wife, filed for divorce based on conversion without getting her consent or consenting to any abuse.

In Teesta Chattoraj v. Union of India^[19], According to the court, one partner may be denied a divorce if the other encouraged them to convert to a different religion. This is true even if the other partner has already accepted a different religion.

In Durga Prasad Rao v. Sudarshan Swami^[20], it was noted that the formal refusal of religion or the sacrificial ceremony execution is not necessary for any conversion event. Thus, in the case of conversion, the issue of truth has come up.

Even though it is unreasonable to expect the petitioner to live with the respondent, Section 13(iii) may obtain a divorce decree or judicial separation under the Marriage Laws (Amendment) Act, 1976, if the respondent has experienced such mental torment frequently or uncontrollably.

In Vinita Saxena v. Pankaj Pandit^[21], The petitioner filed for the respondent's divorce, claiming that the respondent had paranoid schizophrenia, a condition that suggests mental illness. After her marriage, she came to understand these. Here, the husband was granted a divorce by the court due to insanity.

In Ram Narayan v. Rameshwari^[22], the Supreme Court ruled that the petitioner shouldn’t only demonstrate any such mental illness in the case of schizophrenia mental disorder, but also determine that the petitioner it was not reasonable to expect to remain with the respondent.

In Anima Roy v. Prabadh Mohan Roy^[23], The respondent's irregular disorder was discovered after two months of marriage. Additionally, the physician who performed the respondent's test was unable to determine when the illness should start. Furthermore, it was determined that the condition had not been established at the time of the marriage.

Leprosy

The Hindu Marriage Act of 1955 states this in Section (1)(iv). Leprosy is an infectious disease that affects the skin, mucous membranes, nervous system, and other organs. This disease is passed from person to person. As a result, it is referred to as the valid basis for divorce and judicial separation.

In Swarajya Lakshmi v. G. G. Padma Rao^[24], Due to his leprosy, the husband, G. Padma Rao, filed for divorce. Because the expert had reported that his wife had incurable leprosy, he assumed that she was suffering. Here, he succeeds in obtaining a divorce due to leprosy.

General disease

Section 13(V) of the Hindu Marriage Act of 1955 provides grounds for divorce based on communicable venereal disease. This can be considered the correct ground for divorce and Judicial Separation under this definition if the illness is communicable and can be passed on to the other partner.=

In Mr. X v. Hospital Z^[25], the Supreme Court ruled that either husband or wife may get a divorce on the grounds of venereal disease, and an individual who has struggled from the disease can’t be termed to have any right to get married even before marriage, as soon as the disease is not fully cured.

In Sm. Mita Gupta v. Prabir Kumar Gupta^[26], The other spouse suffers just as much if the former is responsible for the disease, but the partner may not receive relief, according to the court's ruling that venereal disease is grounds for divorce.

Renunciation

"Section 13(1) (vi) of the Hindu Marriage Act" was used to designate the ground. It implies that if one of the partners wishes to give up the world and follow God's path, the other will go to court and file for divorce or judicial separation. In this definition, the party who renounces the universe is considered civilly dead. It is a traditional Hindu tradition that is recognised as a valid reason for divorce and judicial separation.

In Sital Das v. Sant Ram^[27], It was held that one is considered to have joined a religious order after going through a few rituals and ceremonies that are prescribed by faith. There are a few issues to consider now. It cannot be considered a divorce floor, for example, if a man or woman joins a religious order but returns home and cohabits every day because he has not further renounced the universe.

Presumption of Death

In this case, if the individual's relatives or friends have not heard anything about him or her for 7 years, the individual is presumed to be dead. It is thought to be a valid ground for divorce, but the onus of proof is on the person seeking divorce or judicial separation.

In Sohan lal v. Kamlesh^[28], The suit was filed by the petitioner against his wife under Section 9 of the Hindu Marriage Act, 1955, which deals with the restitution of conjuggal rights. Additionally, the respondent filed a request for payment of legal fees and maintenance. The husband then attempted to withdraw the lawsuit prior to the declaration, but it was denied.

Since the wife was not receiving any other income at the time, the court decided that the husband was required to give maintenance to the wife and children. On the wife's request, the judge had ordered her to pay Rs. 50 pm in maintenance; however, she later appeared with an amendment, claiming the amount was insufficient for both herself and the child, and the court ordered Rs. 75 pm in its place.

Thus, during the judicial separation, the wife will receive maintenance despite her incapacity to support herself.

Concept of divorce with Mutual Consent 

According to Section 13B, the individual may file a petition for divorce if both parties agree. If the partners agree to end their marriage through mutual consent, they must wait one year from the date of marriage. They must explain that they have been living apart for one or more years and are unable to live together.

In Smt. Jayashree Ramesh Londhe v. Ramesh Bhikaji Londhe^[29], The court decided that after considering the divorce matter by mutual consent, any party may withdraw the petition

or revoke the prior consent in this way, provided that the consent was not obtained by deception, abuse of authority, or coercion.

In Manish Goel v. Rohini Goel^[30], The court decided that this court is authorized to waive the six-month legislative limit in the course of exercising its authority under Article 142 of the Indian Constitution. The aforementioned statutory period of six months for filing a second petition was specified in line with Section 13B(2) of the Act in order to give circumstances a chance to mend fences and withdraw the request for a divorce.

Findings

The irretrievable breakdown of Marriage

The Marriage Laws (Amendment) Bill, 2010, added another ground for divorce, namely irretrievable marriage breakdown under the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954. As the name implies, it refers to a problem in which one or both parties to a marriage are unable to coexist happily with one another due to personality conflicts, differing opinions, or having lived apart from one another for an extended period of time and are no longer eager to continue their marital relationship.

Special Grounds for the wife

Wife's Special grounds for Divorce 

A wife was granted additional grounds for divorce and judicial separation under Section 13(2) of the Hindu Marriage Act, 1955, in addition to the reasons mentioned above. These are the following:

Pre-Act Polygamous Marriage 

This clause specifies the grounds for divorce as follows:

"That the husband has another wife who was alive during the petitioner's marriage solemnization before the Act's inception."

For instance, the case Venkatame v. Patil^[31], wherein one of the men's two wives filed for divorce, and the second wife got divorced while the petition was being processed. Then he said that the petition ought to be denied, since he had only one wife left. The Court dismissed the plea.

Such a basis is acceptable provided that both marriages are lawful unions and that the second wife was living at the time the petition was filed. However, this land has lost its usefulness today.

Non-Resumption of Cohabitation Following a Decree/Order of Maintenance

If a wife receives a maintenance order in proceedings pursuant to Section 125, CrPC, 1973 or a decree pursuant to Section 18, "Hindu Adoption & Maintenance Act, 1956" and cohabitation has not been restored after 1 year or more b/w parties, this is a legitimate ground for divorce.

Customary Divorce

True, the general Hindu rule did not recognise divorce; however, in some societies, divorce was sanctioned by tradition, and the courts enforced the practice where it was not contrary to public policy. The system and intent of this Act are not to circumvent any of the customs recognised as having divorce and effect by the savings contained in this chapter. In any other case, the partners are not required to appear before the Court to request a divorce on customary grounds.

Wife’s Special Grounds for Judicial Separation

Bigamy [Section 13(2)(i)]

This implies that if the husband is remarried when he is still married, both of his wives are entitled to receive the request for judicial separation on assumption that, during lodging, the other wife is still alive. ^[32]

Illustration- 'A' and 'B' have been married for 5 years and are satisfied with their family. 'A' unexpectedly remarried another woman 'C' without the permission of his first wife 'B', and 'C' was unaware that 'A' was previously married. 'B' is eligible to file a judicial separation petition.

Additional grounds for the wife to seek justice between divorce and judicial separation.

Rape, Sodomy or Bestiality [Section 13(2)(ii)]

This provision allows for the filing of a divorce or judicial separation if the husband has been accused of "rape, sodomy, or bestiality" since the marriage was solemnized.^[33]

Illustration- "A" and "B" have been married for three years. The wife "B" may file a petition for judicial separation in this case if husband "A" was found guilty of assaulting another woman.

Repudiation of Marriage

This clause provides the wife with grounds for divorce or judicial separation because the marriage was solemnised before she was 15 years old and dissolved before she was 18 years old.

Illustration- This girl, who is fourteen years old, is from a tribal area. There, child marriage is quite common; her parents offered her to the groom without getting her consent. After marriage, this Act would prohibit ending a relationship without a valid reason. There should be clear guidelines outlining the reasons why a partner may file for judicial separation or divorce.

This Act contains extensive provisions for resolving conflicts between partners and releasing them from marital relationships. She filed a judicial separation petition in this situation because she was underage.

Differences between judicial separation and divorce

Judicial separation	Divorce
This provision is made under section 10 of the Hindu Marriage Act, 1955.	This provision is made under section 13 of the Hindu Marriage Act, 1955.
An application for judicial separation may be filed at any time following the marriage.	Only after one or more years of marriage can a divorce petition be filed.
Judicial separation over a period of time exempts marital obligations and responsibilities.	Permanently, divorce ends the marriage.
Adultery is a broad ground on which anyone can file a petition.	The husband and wife need to live in an adulterous relationship so only a party can apply for divorce.
Judicial separation is a mechanism that incorporates one step.	A divorce is a two-step process.
The parties can consider their marriage and resolve it through judicial separation.	Under divorce one can’t reconcile their marriage

Suggestions

Establishing Family Courts in each district:

There is an urgent need to establish a family court in every district of the country to deal with all types of matrimonial issues, and family court judges must receive special training.

Youth should receive basic education in schools about family values and sex:

If the nation's youth understand the moral values and sanctity of marriage, the divorce rate in India will undoubtedly decrease. Education is very important in the mental upliftment of a nation's youth, and society grows as a result. The healthy development of society is dependent on the youth's healthy thinking. They must be taught to adjust to and tolerate their spouse in order to reduce the rate of divorce in India.

Laws to safeguard rural women :

Even today, women in our country's rural areas face cruelty and harassment from their husbands and in-laws. As a result, they must be provided with some basic legal education, and counselling committees must be established in villages to protect such women from torches and cruelty by their husbands and families.

Laws must be in accordance with modern practices:

All religious denominations' marriage and divorce laws in India must be in line with contemporary practices, according to the cosmopolitan thinking of young generations who receive higher education. The ideal of Indian society is a happy and stable family.

Safeguarding some provisions related to Marriage:

There must be strict rules in place to prevent certain provisions, such as Section 498A of the Indian Penal Code, the Protection of Women from Domestic Violence Act, Section 125 of the Criminal Procedure Code, and Child Custody, from being abused. Many court cases are just as a result of such laws being abused.

The goal of law must be prompt justice:

Divorcing spouses typically squander their golden years in court. The opportunity to remarry and live a better life almost always ends up in court to end an unhappy marriage. There is a need for a timeline, as well as a litigant-friendly strategy for managing cases so that cases are resolved in a reasonable amount of time.

Homosexuality must be made a ground for Divorce: 

When a woman marries, all she wants is her husband's attention, and the same is true for a husband. However, when a spouse discovers that his or her spouse is gay or lesbian (especially in the case of an arranged marriage), the straight spouse finds it difficult to live a normal life with the homosexual spouse.

Conclusion

The Hindu Marriage Act of 1955 establishes various divorce rules. The Hindu Marriage Act defines "divorce as a marriage dissolution." The three primary divorce theories are fault theory, mutual consent theory, and irretrievable theory. In India, the "Fault Theory" is concerned with divorce.

According to this principle, if one of the partners is convicted of a crime committed while married, the marriage may be dissolved. The innocent spouse is free to seek divorce remedies.

According to the Hindu Marriage Act, the primary reasons for Hindu women seeking divorce are adultery, desertion, conversion, leprosy, cruelty, and so on. However, some thinkers are opposed to the idea of divorce. Hindu married women can also file for maintenance under Section 125 of the Criminal Procedure Code. That the innocent partner may approach the court and seek divorce relief.

Marriage is considered a sacred relationship in our country, but if a person is unhappy with their marriage, they should have a way out. People believe that by filing for divorce under the Hindu Marriage Act of 1955, they can obtain relief from the marriage.

This Act prohibits the termination of a relationship for any legitimate reason. Specific grounds for the partner to file for judicial separation or divorce should be specified. This Act contains a significant provision for resolving disputes between partners and releasing them from marital relations.