JUDICIAL SEPARATION AND DIVORCE

Table of Content

JUDICIAL SEPARATION

Judicial separation offers a legal alternative to divorce for couples who wish to live apart without formally dissolving their marriage. This legal provision recognizes the desire to separate without ending the marital bond.

Legal Basis: Section 10 of the Hindu Marriage Act, 1955

Section 10(1): Either party to a marriage, whether solemnized before or after the commencement of this Act, may present a petition praying for a decree for judicial separation on any of the grounds specified in sub-section (1) of section 13, and in the case of a wife, also on any of the grounds specified in sub-section (2) thereof.

Section 10(2): Once a decree for judicial separation has been passed, the petitioner is no longer obligated to cohabit with the respondent. However, the court retains the authority to rescind the decree if it is just and reasonable to do so, based on a petition from either party.

Key Points to Understand

• Who can file- It can be filed either by the husband or the wife.
• Grounds- The grounds of judicial separation are same as divorce grounds under Section 13(1) and (2).
• Result- Cohabitation is not obligatory for judicial separation.
• Possibility of Reconciliation- Yes, if both parties agree and the court finds it reasonable.

Important Analysis

1. Parties to Marriage- If both spouses want to give their marriage another chance, they can resume cohabitation by seeking court permission to rescind the decree.
2. One-Year Waiting Period- After living separately for a year following judicial separation, either party may petition the court for divorce if the issues remain unresolved.
3. Not by Mutual Consent- Judicial separation is not valid if done solely through mutual consent without legal grounds.

Case Law: Prashant Singh vs Tanushree [I (2010) DMC 766]- In this case it was held that Judicial separation must be based on the grounds under Section 13. Mutual consent alone is not sufficient.

Alternate Relief under Section 13A

This section gives the court flexibility to grant judicial separation instead of divorce where appropriate.

Legal Provision: Section 13A of the Hindu Marriage Act, 1955

“In any proceeding under this Act, on a petition for dissolution of marriage by a decree of divorce, except in so far as the petition is founded on the grounds mentioned in clauses (ii), (vi) and (vii) of sub-section (1) of section 13, the court may, if it considers it just so to do having regard to the circumstances of the case, pass instead a decree for judicial separation.”

What It Means

• Even if a party asks for divorce, the court can grant judicial separation if it feels that full dissolution is not necessary.

Exceptions

Judicial separation cannot be granted in place of divorce when the grounds involve:

• (ii): Adultery with cruelty
• (vi): Renunciation of the world
• (vii): Presumption of death

Case Law: Shilpi Jaiswal vs Alok Jaiswal [AIR 2010 (NOC) 805 (Chh.)]- In this case the court, despite a divorce petition by the husband, granted judicial separation considering the circumstances and future possibility of reconciliation.

DIVORCE

The term divorce is derived from the Latin word divortium meaning to separate, disconnect, or sever. When it becomes impossible for parties to live together, the court may grant a decree of divorce under Section 13 of the Hindu Marriage Act, 1955.

THEORIES RELATED TO DIVORCE

• Fault Based Theory / Misconduct Theory: Fault based theory is the theory which incorporates the rationale that one of the parties to the marriage has behaved in such a manner that it cannot reasonably be expected that the petitioner can live with him or her Grounds such as cruelty, desertion, adultery, apostasy, based on fault of one spouse.
• Disability Theory: Disability theory indicates that one of the party to marriage may be suffering from a disease which is of such a nature that the other cannot reasonably be expected to live together. One spouse suffers from incurable disease making cohabitation unreasonable (e.g., venereal disease, insanity). Leprosy was removed from grounds in 2019.
• Breakdown Theory: This theory states that marriage is broken beyond repair and forcing cohabitation is futile or harmful.
• Mutual Consent Theory: Where both the parties due to the various difference between themselves decide to put up an end to the marriage, then in such a condition court by following the legal procedure may end the marriage.

GROUNDS OF DIVORCE UNDER SECTION 13(1)

Section 13(1) of the Hindu Marriage Act provides the legal grounds on which either spouse can file for divorce.

1. Adultery – Section 13(1)(i)

Adultery refers to voluntary sexual intercourse by either spouse with someone other than their partner. Even a single act of adultery is sufficient for a divorce claim.

• Important Point: The act of adultery must be voluntary and not forced.
• Condonation Rule: This rule states that if the aggrieved spouse condones (forgives) the adulterous act by resuming cohabitation, they cannot later file for divorce on the same ground.

Case Law:

• Rajesh Kumar Singh vs Rekha Singh (AIR 2005 ALL 16): In this case it was held that rape is not adultery, and hence not a valid ground under this clause.
• Rashmi vs Vijay Singh Negi (AIR 2007 Utr 13): In this case it was held that testimony of children confirmed wife’s illicit relationships so the  divorce can be granted.

2. Cruelty – Section 13(1)(ia)

Cruelty includes physical or mental harm, emotional abuse, or behavior that causes suffering.

• Note: Intention is not necessary for the commission of offence of cruelty
• Condonation- Rule of condonation applies here as well — if cruelty is forgiven, it cannot be used later as a ground for divorce.

📌 Case Laws:

• Sanjay Bihari Agrawal vs Sandhya Agrawal [AIR 2010 (NOC) 901 (Chh.)]: In this case it was held that mental agony qualifies as cruelty.
• Gurbux Singh vs Harminder Kaur (AIR 2011 SC 114): In this case it was held that cruelty must be judged case-by-case based on circumstances.
• Anita Aggarwal vs Ramesh Aggarwal (AIR 2020 P&H 108): In this case the wife was earlier guilty of cruelty but is condoned by the family members of husband after a compromise. But later on she again harassed the family members and then husband seek divorce and it was held that fresh acts of cruelty may revive the earlier conduct even if it is condoned.

 3. Desertion – Section 13(1)(ib)

Desertion means abandoning the spouse without consent and without intention to return for at least two continuous years before filing for divorce.

📌 Case Law:

• Raj Kumari Jaiswal vs Ramesh Kumar Jaiswal (AIR 2007 Cal 94): In this case the husband first filed the petition for restitution of conjugal rights but after the completion of 2 years with the permission of court converted it into desertion committed by wife. Court held that in this case desertion will be computed from 2 years after change in plaint and not from the initial date.

4. Conversion – Section 13(1)(ii)

If one spouse converts to another religion, the other spouse may file for divorce. Divorce is not automatic; filing is optional for the aggrieved party.

5. Unsoundness of Mind – Section 13(1)(iii)

This ground states that divorce can be claimed if a spouse suffers from mental disorder making cohabitation unreasonable.

📌 Case Law:

• Sheela vs Baldev Singh (AIR 2010 Utr 18): In this case the wife used to beat her husband and son, would cry at night, and try to commit suicide. Court in this case held that it is not expected from husband to live with her and divorce was granted to him.

6. Leprosy – Section 13(1)(iv)

Previously, suffering from virulent and incurable leprosy was a ground.

• 🛑 Note: This ground was removed by the Personal Laws (Amendment Act), 2019.

7. Venereal Disease – Section 13(1)(v)

If a spouse suffers from a communicable venereal disease, the other may seek divorce.

8. Renunciation of the World – Section 13(1)(vi)

If a spouse renounces worldly life by entering a religious order, it is a valid ground. Renunciation is considered as an extreme form of desertion.

9. Presumption of Death – Section 13(1)(vii)

As per this section if a spouse is not heard of as alive for 7 years, the other may file for divorce.

• This ground is based on Evidence Act, 1872 which states that a person is presumed to be dead after 7 years of disappearance.

Breakdown of Marriage – Section 13(1A)

This section introduces two additional grounds based on the irretrievable breakdown of marriage:

1. No cohabitation for 1 year or more after a judicial separation decree.
2. No restitution of conjugal rights for 1 year or more after such a decree.

👑 Supreme Court Power: Under Article 142, the Supreme Court can grant divorce even if not strictly available under the Act — based on the principle of irretrievable breakdown of marriage.

GROUNDS OF DIVORCE UNDER SECTION 13(2)

These grounds mentioned under Section 13(2) are available only to the wife:

1. Bigamy or polygamy- Section 13(2)(i) provides that wife can file divorce petition if husband is indulged in the act of bigamy or polygamy. Such a petition may be filed by any of the wives. The only necessary condition in this case is that if the husband marries after the death of wife, then in such a situation divorce cannot be filed by wife.
2. Rape, Sodomy or Bestiality- Section 13(2)(ii) provides that wife can file divorce petition if husband is guilty of commiting rape, sodomy or bestiality.
3. Maintenance to the wife- Section 13(2)(iii) provides that wife can file divorce petition if any decree or order has been passed against the husband awarding maintenance to the wife and one year has passed and there has been no resumption of cohabitation between the two.
4. Option of Puberty- Section 13(2)iv) provides that if a girl child is married before 15 years of age, then in such a situation she can approach the court for divorce after she becomes 15 but before 18 years of age. This ground is basically taken from the classical muslim law. This concept is basically known as option of puberty.

Case- Roop Narayan Verma vs Union of India (AIR 2007 Chh 64)- In this case section 13(2)(iv) was challenged as being unconstitutional on the ground that such a ground is only available to the females and not to the males and court in this case held that this provision is constitutionally valid as Article 15(3) of the Indian Constitution permits state to make special provisions for women and children.

DIVORCE BY MUTUAL CONSENT

Section 13B of the Hindu marriage act deals with divorce with mutual consent. As per this section the parties to marriage may take divorce on the ground that they have been living separately for a period of more than one year and the parties have mutually agreed that the marriage should be dissolved.

Divorce by mutual consent can be granted by court only after 6 months and before eighteen months of the presentation of petition of divorce.

Case- Nikhil Kumar vs Rupali Kumar (AIR 2016 SC 2163 – In this case the parties decide to divorce with each other by mutual consent. With the petition of divorce they also filed a petition of waiver of 6 months of waiting time period as wife wants to shift new York. In this case court held these circumstances warrants the waiver of statutory period of 6 months.

References:

1. Family Law-I by Poonam Pradhan Saxena