Divorce and Judicial Separation under Hindu Law

Author: Utkarsh Singh; Amity University, Lucknow

I. INTRODUCTION

Marriage is regarded as a sacrament in Hindu society. It means that the Hindu marriage, by its very nature, cannot be canceled. According to Hindu rituals, Hindu marriages are created by the gods and cannot be broken by humans. Before the establishment of the Hindu Marriage Act, 1955 (hence referred to as the ‘Act’) there was no way for either party to get the marriage annulled if there were any problems. The parties now have the legal grounds to submit a petition for divorce or judicial separation as soon as the Act is passed.

II. JUDICIAL SEPARATION

Marriage is such an important component of Hinduism that it cannot be easily ended. As a result, the Indian judicial system does not allow divorce when the parties to a Hindu marriage ask the court to end the marriage.

Judicial separation is the first legal remedy granted by the court. So that the parties to a marriage can assess if the issues are solved or not. It’s a replacement for divorce in which the partner is given time to reconsider their decision.

The marriage is not terminated in judicial separation, and the husband and wife are still deemed married. Judicial Separation is when a judge orders the spouses to refrain from performing conjugal rights for a set length of time without causing the marriage to end. It is based on the British “Mensa et thoro” idea.

The reasons for judicial separation are the same as the grounds for divorce, according to the 1976 amendment to the Hindu Marriage Act, 1955. The Special Marriage Act was the first to introduce the notion of judicial separation, followed by the Hindu Marriage Act. If either party files for divorce, the court will issue a decree of judicial separation for self-analysis, in which the parties to the marriage are not obligated to perform conjugal duties, and if the problem between the couple persists after the specified time, the court will issue a divorce, resulting in the termination of the marriage. For Hindu marriages, divorce is addressed under section 13 of the Hindu Marriage Act of 1955.

The Hon’ble Court declared in Subbarama Reddiar v. Saraswathi Ammal[1] that Judicial Separation might be granted if the petitioner has evidence that the respondent has committed adultery.

According to Section 10 of the Act, an aggrieved party in a Hindu marriage can submit a complaint before the District Court provided the following conditions are met:

• A couple wedded according to Hindu marriage ceremonies and procedures and did not break any of the Hindu Marriage Act’s conditions.
• The person against whom the petition is filed must be a resident of the jurisdiction of the court where the action is lodged.
• Before initiating the action under judicial separation, the spouses must have performed conjugal rights for a set amount of time.

a) GROUNDS FOR JUDICIAL SEPARATION AS PER HINDU MARRIAGE ACT

Any Hindu spouse can file a petition for judicial separation on the same grounds that a divorce can be granted under section 13 of the legislation, whereas judicial separation is given under Section 10 of the Act.

• ADULTERY

The Hindu Marriage Act, Section 13(1)(i), mentions it. It indicates that if one of the spouses has a physical relationship with another person against his or her choice after their marriage, the other party may submit a Judicial Separation or Divorce petition under this act.

It should be mentioned that if her husband commits rape, buggery, or intercourse with an animal, the woman can file such a petition in court. If more similar actions are discovered, the wife has the option of filing for divorce from her husband.

S.C. stated in Hirachand Srinivas Managaonkar v. Sunanda[2]that if either spouse’s adultery is proven with proof, the court shall issue a judicial separation order, and the petitioner may seek a divorce on the same grounds.

• CRUELTY

One of the reasons for conjugal relief is this. Cruelty is defined as when the respondent does not treat the petitioner in a decent but cruel manner, as defined by Section 13(1)(i-a) of the act. Cruelty might take the form of physical or mental pressure on the petitioner by the respondent. It should be noted that while the Hindu Marriage Act does not define cruelty, other personal laws, such as Muslim law, do, and it is through these laws that a wife can obtain a divorce or a judicial separation from her husband. Cruelty is also specified in Section 498-A of the Indian Penal Code, which is discriminatory against women.

The petitioner in Shyamsundar v. Santadevi[3]was the wife who had been brutally harmed by the husband’s kins. Despite this, the husband had done nothing to protect his wife, and the court determined that this amounted to cruelty, which was sufficient grounds for judicial separation.

• DESERTION

Desertion is defined in sub-section (1) of section 13 of the Hindu Marriage Act, 1955:

“The term ‘desertion’ refers to the other party to the marriage abandoning the petitioner without reasonable cause and such party’s consent or wish, and includes the other party’s willful neglect to the petitioner, and its grammatical variations and cognate expressions shall be construed accordingly.”

Desertion, in other words, is defined as “permanent leave or abandonment of one spouse by the other without any reasonable reason and the other’s permission.”

In Guru Bachan Kaur v. Preetam Singh[4], the husband filed for divorce after seven years of stated desertion, but never realized the wife’s problems, who was also a working mother. However, the woman was allowed to keep her job while her husband stayed at home. The High Court concluded that there is no such thing as mutual desertion. One side must be at fault for desertion to occur.

• CONVERSION

Conversion is discussed in Section 13(1)(ii). If one of the partners changes his faith without the consent of the other, the other spouse may petition the court for divorce or judicial separation.

In Madhukar Bhaskar v. Saral[5], it was held by the court that if a person becomes a hermit and fails to fulfill his or her conjugal responsibilities, the other party in a Hindu marriage can file a petition for judicial separation.

• INSANITY

If a person is a Hindu marriage, such as a husband or wife, is suffering from a mental condition that puts the other person in the marriage in danger as a result of his or her acts or behaviour, the hurt person can seek judicial separation or divorce on the grounds of insanity under Section 13(1)(iii).

In Anima Roy v. Prabadh Mohan Ray[6], the husband and wife married under Hindu law, and the respondent began to show symptoms of illness, which are a sign of a rare condition, before two months had passed, and the doctor was unable to pinpoint when it began. The court ruled that it could not be determined at the time of the marriage.

• LEPROSY AND VENEREAL DISEASE

According to Section 13(1)(iv) of the Hindu Marriage Act of 1955, if one of the spouses in a Hindu Marriage has a condition like leprosy, the other spouse can seek divorce or judicial separation.

Furthermore, if one of the spouses is suffering from an incurable sickness, the other spouse can make a plea for divorce or judicial separation under Section 13(1)(v).

The Hon’ble High Court of Odisha held in Ratna Manjari Das v. Bhaskar Chandra Das[7] that if a spouse files for judicial separation or divorce because the other spouse has a venereal condition, it must be proven that the sickness is infectious and untreatable.

• DEATH IS ASSUMED

Section 13(1)(vii) states that if a Hindu marriage partner goes missing for seven years and even his or her relatives are unaware of his or her whereabouts, the person is assumed dead in the eyes of the law, and this is one of the grounds for judicial separation.

ONLY THE WOMAN HAS THE RIGHT TO SUBMIT A JUDICIAL SEPARATION OR DIVORCE PETITION ON THE FOLLOWING GROUNDS:

• Bigamy: If the husband has been married twice, the wife may seek judicial separation or divorce based on one of the grounds listed in Section 13(2)(i).
• Age: If the damsel is under the age of 15 at the time of Hindu marriage, she can file for divorce and judicial separation under section 13(2)(iv).
• Other reliefs include rape, buggery, and bestiality by the Husband in the case of rape.

III. DIVORCE UNDER HINDU MARRIAGE ACT

Divorce is a step in which the partners decide to end their marriage, either by mutual consent or due to the fault of the other spouse. When a marriage is dissolved, the parties are no longer bound by the marriage’s rights and obligations. The couple is no longer regarded to be husband and wife. They are, however, free to remarry if they so desire. Three divorce theories are widely accepted around the world. These are the following:

• FAULT-BASED THEORY: This divorce theory applies when one spouse is seeking a divorce because of the other spouse’s fault, such as adultery, conversion, or rape. Simply said, if one of the spouses does something illegal under the law in terms of marriage, the affected person might submit a divorce petition.
• NO-FAULT THEORY: In this divorce, the petition is filed with the parties’ mutual consent. There does not have to be any wrongdoing on the part of either party.
• BREAKDOWN OF MARRIAGE THEORY: This theory addresses the situation where a marriage has become so irreparably shattered that it can no longer be repaired and a compulsory divorce must be granted. Although this idea is not often employed in India, the Supreme Court has granted such a divorce under Article 142 of the Constitution.

a) REASONS FOR DIVORCE

Divorce is based on the same grounds as judicial separation. If there is no resolution of disagreements between the husband and wife during judicial separation, the parties can file a divorce petition. If the court has previously issued a decree of restitution of conjugal rights under section 9 of the Act, and the parties do not fully comply with it or are unable to cohabit, the court will, following the filing of a divorce petition by either party, disregard any grounds and grant the divorce.

Even if the petition does not request it, if the court finds no validity in the divorce petition or believes the act is not so serious that the spouses are unlikely to divorce, the court can convert the petition to judicial separation from divorce.

In Vimlesh v. Prakash Chandra Sharma[8], the court ruled that one act of cruelty is insufficient grounds for filing a divorce petition, and the petition was converted to judicial separation to give the couple time to reconcile.

IV. DIVORCE AND JUDICIAL SEPARATION: WHAT’S THE DIFFERENCE?

S.NO	DIVORCE	JUDICIAL SEPARATION
	It is possible to file it after one year of marriage.	It is possible to file it at any point in marriage.
	In most cases a two-step process is used: First, there is a cooling-off period, and then, if nothing works out well for the parties, divorce is granted.	Only the prerequisites must be met.
	Marriage is permanently dissolved.	Suspension of rights and obligations for a limited time.
	After obtaining a divorce decision, the parties are free to remarry.	After obtaining a judicial separation decree, the parties are unable to remarry.
	When it comes to divorce, the courts assume that there is no chance of reconciliation.	There is a chance for reconciliation.

V. CONCLUSION

The Hindu Marriage Act of 1955 establishes various divorce regulations. The Hindu Marriage Act defines divorce as a marriage dissolution. The three basic theories in connection to divorce are Fault Theory, Mutual Consent, and Irretrievable Theory. In India, the “Fault Theory” is concerned with divorce. Marriage may be dissolved under this principle if one of the partners is accountable for a crime committed during the marriage. The uninvolved partner is free to seek divorce relief.

Adultery, desertion. Conversion, leprosy, cruelty, and other major reasons for Hindu women seeking divorce are listed in the Hindu Marriage Act. However, many detest the idea of divorce. Hindu married women can also sue for maintenance under Section 125 of the Criminal Procedure Code. The innocent partner has the right to contact the court and ask for divorce relief.

Marriage is seen as a holy bond in our society, yet a person should be able to exist a relationship if he or she is unhappy with it. People believe that if they get a divorce under the Hindu Marriage Act of 1955, they will be able to get out of their marriage.

This Act would make it illegal to end a relationship for any reason. The partner should be given specific reasons on which to file a judicial separation or divorce petition. This Act includes a fantastic framework for resolving partner issues and releasing them from marital relations.

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[1] (1966) 79 LW 382

[2] (2001) 4 SCC 125

[3] AIR 1961 AII 563

[4] AIR 1998 AII 140

[5] (1971) 74 Bom. L.R. 496

[6] 1978 AIR 803

[7] 1979 SCC Ori 115

[8] AIR 1992 AII 260

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