Saturday, August 13, 2022

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Judicial Separation

Section 10 of the Hindu Marriage Act, 1955, provides for Judicial Separation. According to Sec 10 of the Act 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 might have been presented.

The following are the grounds available to both husband and wife for obtaining a decree of Judicial Separation
1) Adultery: After the solemnization of the marriage, had sexual intercourse with any person other than his or her spouse.
2) Cruelty: Treated the petitioner with such cruelty as to cause a reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for the petitioner to live with the other party
3) Desertion: Deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition
4) Conversion: Ceased to be a Hindu by converting to other religion
5) Insanity: Continuously of unsound mind or insanity for a period of not less than two years immediately preceding the presentation of the petition
6) Leprosy: For a period of not less than one year immediately preceding the presentation of the petition, been suffering from a virulent form of leprosy
7) Venereal Disease: Immediately before the presentation of the petition, been suffering from venereal disease in a communicable form, the disease not having been contracted from the petitioner; or
8) Renunciation of the world: Renounced the world by entering any religious order
9) Not being heard for seven years: Not been heard of as being alive for a period of seven years

The following grounds are available for the wife over and above the 9 grounds stated above 1) Husband is having more than one wife
2) Husband is guilty of Sodomy, bestiality or rape

The effect of the decree is that certain mutual rights and obligations arising from marriage are put under suspension. The main purpose behind filing the petition for Judicial separation is to make interim financial arrangements for two of them, such as deciding which one will possess which property, and which one of them shall pay the other temporary financial support etc.

Where a decree for judicial separation has been passed, it shall no longer be obligatory for the petitioner to cohabit with the respondent, but the court may, on the application by petition of either party and on being satisfied of the truth of the statement made in such petition, rescind the decree if it considers it just and reasonable to do so.

Judicial or legal separation permits the parties to a marriage to live apart. It is a relief short of actual dissolution of marriage. So long as the decree is in force the parties to the marriage are permitted to live apart and it shall no longer be obligatory for either party to cohabit with the other. The object of this provision seems to be to afford an opportunity to the parties to reconcile their difference and to live together. If the parties do not cohabit for a period of one year or upwards after a decree for judicial separation was passed, either party to the marriage can claim dissolution of the marriage.