INTRODUCTION
According to the Hindu religion, marriage is considered to be a sacred relationship between husband and wife. The purpose of marriage is to enable a man and a woman to perform the religious duties and obligations of life. According to old Hindu Laws, marriage is considered to be a sacred ceremony and a religious tie. Thus, the Hindu Marriage Act was introduced to give certain justifiable rights to married persons and the right to revoke their marriage. In modern times, a person can ask for relief of Judicial Separation under the Hindu Marriage Act, 1955.
JUDICIAL SEPARATION (SECTION 10)
Judicial separation is one of the matrimonial reliefs which is provided under the Act. The relief granted under this section does not put an end to the marriage which means, that the legal relationship between husband and wife continues to subsist. However, it is not obligatory for the parties to cohabit with each other. The law gives a right to mediate and a chance to both parties to reconsider their relationship. The law is always in favor of reconciliation between husband and wife so it gives them the liberty and ample opportunities to think about their future. Section 10 of the Hindu Marriage Act, 1955 provides the relief of Judicial Separation to both parties, who are married under the Hindu Marriage Act, 1955. Once the decree is passed under Section 10, HMA, they are not bound to cohabit.
GROUNDS FOR FILING A PETITION UNDER SECTION 10
The grounds for seeking Judicial Separation are similar to the grounds for Divorce under Section 13(1) & (2). So, where a marriage is solemnized before or after the commencement of the Act, either party to the marriage may present a petition praying for judicial separation on any of the grounds which are specified under Section 13(1) of the Act. In addition, a wife can also ask for Judicial Separation on any of the grounds specified in Section 13(2) of the Act. Where a decree of Judicial Separation has been passed by the court, there will be no obligation on the aggrieved party to cohabit with the other party. If on an application being filed by either party to the marriage, the Court is satisfied with the contents of the application, it can rescind the decree if it considers it reasonable to do so.
- Adultery – Under section 13(1)(i), where the husband or wife, voluntarily has sexual intercourse with any other person after the marriage, they are said to commit Adultery. The aggrieved party can claim relief under Section 10.
- Cruelty – Where either party to the marriage under section 13(1)(i-a), inflicts any mental or physical pain on the other party, the aggrieved party can file a petition for Judicial Separation on the grounds of cruelty.
- Desertion – Under section 13(1)(i-b), if either party to the marriage has left the other party for any reason whatsoever without informing him/her, for a period of 2 years just before the petition is filed, then desertion gives a right to claim relief of judicial separation to the aggrieved party.
- Conversion – If either party to the marriage being a Hindu converts to any other religion under section 13(1)(ii), the aggrieved party can file for judicial separation under Section 10 of the Act.
- Unsound Mind – Under section 13(1)(iii), if either party to the marriage is suffering from any mental disorder making it difficult for the aggrieved party to cohabit, then he/she can claim relief of judicial separation.
- Leprosy – Where either party to the marriage is suffering from any disease like leprosy, being incurable, the aggrieved party can file a petition for judicial separation. It is to be noted, that Leprosy is no longer a ground for seeking Judicial Separation u/s 10 or divorce under section 13(1)(iv), HMA.
- Venereal Disease – Under section 13(1)(v), where either party to a marriage has any type of disease like AIDS, etc. which is incurable or communicable and the aggrieved party is not aware of it at the time of marriage, it can be a valid ground for the aggrieved party to file a petition for judicial separation.
- Renunciation of the World – Under section 13(1)(vi), renunciation from the world means that the person has given up worldly pleasures and is leading a sacred, holy life. If either party to the marriage renounces the world, the aggrieved party can seek relief under Section 10, HMA.
- Presumption of death – Under section 13(1)(vii), if a person is not found or heard from for 7 years or more by a relative or any other person or it is believed that he/she may be dead, then the aggrieved party can file for judicial separation.
ADDITIONAL GROUNDS AVAILABLE TO THE WIFE
- Bigamy – Where a Hindu husband marries again during the lifetime of his wife, provided that the first marriage is a valid marriage, the wife on the ground of section 13(2)(i) can seek relief of Judicial Separation under Section 10 of the Act.
- Under section 13(2)(ii), where the husband has been guilty of committing rape, sodomy, or bestiality, the wife can pray for Judicial Separation.
- Where a decree or an order has been passed under Section 18 of The Hindu Adoptions and Maintenance Act, 1956, or Section 125, Cr.P.C, against the husband, to award maintenance to the wife considering the fact that she has been living apart from the husband and they have not been living together for one year or more. The wife can seek relief from the court under Section 10, HMA.
- Where the marriage of the wife was solemnized before she attained the age of fifteen years and she has repudiated the marriage after attaining that age but before she attains the age of eighteen years. The wife can pray for separation under this section
JUDICIAL SEPARATION AND DIVORCE
Judicial Separation under Section 10 and Divorce under Section 13, HMA are two totally different concepts yet the grounds to seek relief under both sections are similar. Judicial Separation merely suspends the marital rights and obligations of the parties to the marriage, they continue to have the status of husband and wife till the decree is in force. A petition for judicial separation under Section 10 can be filed at any time after the marriage has been solemnized. On the other hand, Divorce puts an absolute end to the marriage. The parties are no longer in a marital relationship and cease to be husband and wife. A petition for divorce under Section 13 can be filed only after a period of one year from the date of marriage. Where the decree for Judicial Separation has been passed by a Court and the parties have not lived together for a period of one year or more, then either party to the marriage can file a petition for Divorce. It is to be noted, that, the wife can ask for maintenance from the husband during the subsistence of the decree of Judicial Separation.
Keeping in mind the facts and circumstances of a case, the Court has the power to pass a decree for Judicial Separation even though the parties are not claiming relief under Section 10, HMA.
CONCLUSION
Judicial Separation is often regarded as a better option as compared to Divorce, as, instead of approaching the court for divorce immediately after the lapse of one year from the date of marriage, Judicial Separation has no restraint of time and gives a scope for reconciliation, which makes it a preferable relief to seek under the HMA.
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