In this article you will learn about the Judicial Separation under Hindu Law.
Judicial Separation under Hindu Law
Judicial separation under Hindu law is a legal remedy available to married couples who are facing difficulties in their marriage but do not wish to immediately pursue a divorce. Judicial separation does not dissolve the marriage, but it allows the spouses to live separately and be exempt from their marital obligations while remaining legally married. This concept is primarily governed by Section 10 of the Hindu Marriage Act, 1955.
Here are key points related to judicial separation under Hindu law :
Section 10 of the Hindu Marriage Act, 1955:
Section 10 provides for judicial separation as a legal remedy for married couples. It allows either the husband or the wife to file a petition in the district court seeking a decree of judicial separation.
Effect of Judicial Separation:
A decree of judicial separation does not dissolve the marriage. The spouses are still legally married, but they are no longer bound to cohabit with each other. The court may make provisions for the financial support (maintenance) of the spouse and any children, custody of children, and other related matters.
Living Apart:
Once the decree of judicial separation is granted, the spouses can live separately without being in violation of their marital obligations. However, they are not free to remarry as the marriage is not terminated.
Conversion to Divorce:
After obtaining a decree of judicial separation, either spouse can, at a later stage, file for a divorce on grounds mentioned under the Hindu Marriage Act. The court may convert a decree of judicial separation into a decree of divorce if either party applies for it.
Counselling and Reconciliation:
Before granting a decree of judicial separation, the court may attempt reconciliation between the spouses. The court may refer the parties to counselling or take other measures to save the marriage.
Discretion of the Court:
The court has discretion in granting or refusing a decree of judicial separation. The decision is based on the facts and circumstances of each case.
Grounds for Judicial Separation
Numerous rights and obligations are created by the court-approved separation. The parties are allowed to live apart by a judicial separation decree or order. Either party would not be required to live with the other. The rights and obligations that come with being married are suspended for both parties. However, the marriage is not severed or dissolved by the decree. It provides a chance for restitution and modification. Although judicial separation may eventually serve as grounds for divorce, it is not required and the parties are not required to use that remedy; instead, they are free to continue living as husband and wife for the rest of their lives. It is provided in accordance with Act Section 10; the spouse can file a petition for judicial separation on the basis of these following grounds :
- Adultery [Section 13(1)(i)]- It refers to situations in which a spouse willingly engages in sexual activity with someone other than their spouse. The party who feels wronged in this situation may seek relief, but the relationship should begin after marriage.
- Cruelty [Section 13(1)(i-a)]- It means when one partner abuses the other or causes the other any kind of physical or emotional suffering after getting married. The victim may submit a petition on the ground of cruelty.
- Desertion [Section 13(1)(i-b)]- This section states that the hurt party has the right to request judicial separation relief if the other spouse deserts them for any reason and fails to notify them for at least two years prior to the other spouse's petition being filed.
- Conversion/Apostasy [Section 13(1)(ii)]- The other spouse may request judicial separation if one of the spouses converts to a religion other than Hinduism.
- Unsound mind [Section 13(1)(iii)]- If one partner in a marriage has a mental illness that makes it difficult for the other partner to live with the sufferer The other spouse may request judicial separation as a means of relief.
- Leprosy [Section 13(1)(iv)]- If one spouse has a disease, such as leprosy, from which they are unable to recover, the other spouse may file a petition for judicial separation so that they are not forced to spend more time with the sufferer.
- Venereal Disease [Section 13(1)(v)]- A spouse may be entitled to file a petition for judicial separation if they or any other party to the marriage has a communicable or incurable illness and the spouse was unaware of it at the time of the marriage.
- Renounced the World [Section 13(1)(vi)]- Renouncing the world is equivalent to "Sannyasa" in Hindu law. A person who renounces the world is said to have given it up and to be living a holy life. He's regarded as a civil dead. A spouse may petition for judicial separation if they decide to give up their worldly life in order to lead a holy life.
- Civil death/Presumed death [Section 13(1)(vii)]- When someone goes missing for seven years or longer, and no one, not even their relatives, has heard from them, or when it's thought that they may have passed away. Here, a judicial separation request may be made by the other spouse.
This article on Judicial Separation under Hindu Law is contributed by Dipshikha Anand. If you like LawStudyPoint.com do follow us on our Twitter handle.