Judicial Separation and Divorce under Hindu Law


Posted On : September 6, 2022
Judicial Separation and Divorce under Hindu Law
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In India, specifically among Hindus, marriage is not just a contractual relationship but a sacrament. It is considered a pious relationship and thus, ending a marriage was not a concept among Hindus until the Hindu Marriage Act, 1955 was introduced. Even today, courts do not grant divorce that easily. The idea is that marriage is permanent and divorce is just an option when continuation of marriage is unthinkable. When marital obligations are in a state of abeyance, there are  two pathways for couples in India, i.e. Judicial Separation and Divorce under Hindu law. Various aspects related to these two parallel paths have been dealt with in the blog below.

 

Judicial Separation in Hindu Marriage Act, 1955

Section 10 of the HMA 1955 deals with judicial separation. As the term explains, it is a judicially accepted case of husband and wife living separately while the marriage still continues. In other words, it can be understood as “a court decree requiring a married couple to cease cohabiting but not dissolving the marriage”. The idea is to give both husband and wife another chance to re-analyze their marriage. The couples undergoing judicial separation in Hindu Marriage Act are allowed to escape matrimonial obligations like cohabitation. If parties fail to reconcile with each other and still wish to separate, courts often grant divorce after judicial separation in India. Thus, Judicial separation and divorce under Hindu law can be taken as distinct stages for ending a marriage.

Since courts are involved in the process, grounds of judicial separation under hindu law need to be proved before the courts for grant of decree. Husband is still legally bound to pay the wife maintenance in judicial separation until divorce is granted. Legal understanding of both judicial separation vs divorce in India is essential for couples planning to separate. Thus, consultation with a divorce lawyer in Kolkata will bring clarity for couples who are residents of Kolkata.

 

Difference Between Judicial Separation and Divorce under Hindu Law

As understood in simple words, divorce is the climax of marriage while judicial separation is the interval. The difference between judicial separation and divorce totally depends upon whether husband and wife are certain regarding the end of marriage or need some time for self analysis and whether they can survive without the said marriage. The table below puts some more light in this regard.

 

Judicial Separation vs Divorce in India

Parameters

Legal Separation

Divorce

Timeline

Application for judicial separation under Hindu law can be filed under Section 10 of HMA 1955 anytime after marriage.

Application for divorce under Section 13 of HMA 1955 can be filed only after the expiry of at least 1 year of marriage.

Nature

Legal separation under HMA is a comma/ temporary suspension of marriage.

Divorce is the period/ permanent end of the marriage.

Maintenance

Status of the wife does not change and thus, the husband has to bear the expenses of maintenance in judicial separation.

A divorced wife retains the maintenance or alimony rights as per HMA 1955 or even under CrPC 1973 Section 125.

Effect on Marriage

The husband and wife in case of legal separation still remain a couple, and thus, can not remarry.

Marriage comes to an end after divorce. Thus, husband and wife are free to marry someone else after the expiry of the period of appeal.

Taking Back

Decree of judicial separation can be rescinded through application by either party if court is satisfied

Decree of divorce can not be rescinded but can be appealed against

 

 

Grounds of Judicial Separation under Hindu Law

People often think that getting divorce or separation from their spouse is an easy task. Such people are totally unaware of the effort which divorce advocates need to put to convince the courts in divorce cases. It may be a cake walk if parties are mutually seeking divorce or judicial separation. However, for contested cases where one spouse wants to end the relation and the other wishes to continue, things turn troublesome. Given below are the grounds of judicial separation under Hindu law which also turn out to be divorce grounds:

  • Mutual Consent Divorce - When husband and wife both agree for divorce.
  • Cruelty - Act of physical or mental cruelty by wife or husband against one another.
  • Adultery - When either husband or wife has sexual relationship with anyone other than the spouse.
  • Desertion - When one of the spouses leaves the company of another (deserts the spouse) for 2 or more years.
  • Unsound mind - When either husband or wife is suffering from mental illness which is affecting the marital relationship.
  • Ceased to be a Hindu/ Religious conversion - Since the marriage under Hindu Marriage Act, 1955 takes place as per religious practices, when one spouse ceases to be a Hindu is a ground.
  • Venereal disease (in communicable form) - When one of the spouses is infected with a sexually trannsmittable disease.
  • Renunciation of world - When husband or wife has renounced worldly relations and not actually the world through death.
  • Not heard of being alive for 7 or more years

Wife enjoys certain additional grounds for judicial separation or divorce as per Section 13 (2) of HMA 1955 as listed below:

  • Bigamy - When husband marries another woman while the first wife is alive.
  • Husband guilty of rape/ sodomy/ bestialty - Not only complaint but charges of rape/ sodomy/ bestialty have been proved against the husband.
  • No cohabitation for 1 year while receiving maintenance through decree/ order.
  • Denial (repudiation) of marriage before 18 years whereby marriage solemnized before 15 years of age,

What are the Grounds for Divorce under Hindu Law?

All the grounds for judicial separation under Hindu law as explained above are applicable to divorce as well. However, two additional instances have been provided whereby parties can seek divorce as provided below:

  • No resumption of cohabitation after 1 year of decree of judicial separation
  • No restitution of conjugal rights after 1 year of passing of decree of restitution of conjugal rights under Section 9 of HMA 1955.

If mutual divorce is not a possibility, parties need to prove the divorce grounds before the court of law beyond reasonable doubt for grant of decree in own favor.

Divorce After Judicial Separation in India

The aim of both divorce vs legal separation is related to inability of husband and wife to cohabit with each other due to any of the reasons for divorce or judicial separation as explained above. In fact, judicial separation in Hindu Marriage Act is a prior condition in usual cases for couples seeking divorce. Couples have to live separately for a certain period before they are granted divorce under Section 13. However, if parties have only initially applied for judicial separation under Hindu law and there was no cohabitation for the past 1 year or more, either of them may apply for divorce. In case the couple has one or more children out of the said marriage, orders regarding custody of child after divorce or judicial separation are also issued by the concerned courts from time to time.

 

Benefits of Judicial Separation - India

People often regard judicial separation to be a better option than that of divorce. The sole reason for the same is that parties still have scope for reconciliation. Find out the advantages of judicial separation vs divorce in India through pointers given below:

  • Application for legal separation may be filed at any time after the solemnization of marriage.
  • Parties do not need to wait for expiry of 1 year after marriage to apply for judicial separation.
  • Temporary suspension of marital obligations against the spouse.
  • After legal or judicial separation, the parties may reunite if the idea of separating from the spouse does not deem right or the dispute is resolved.
  • Wife can still seek maintenance from the husband.

 

 

FAQs on Judicial Separation vs Divorce in India

Q- What is the difference between judicial separation and divorce?

A- Section 10 provides for judicial separation in Hindu Marriage Act. In easy language, judicial separation under hindu law is a halt in cohabitation of the husband and wife. On the other hand, divorce under Section 13 of Hindu Marriage Act provides grounds for divorce in India applicable to Hindus which is a permanent end to marriage. Judicial separation does not affect the status of marriage between husband and wife since they still have the chance to get back and start living together. However, divorce leads to termination of marriage. 

 

Q- Can you divorce after judicial separation?

A- Yes, judicial separation is a pre-phase to divorce. If a couple has been living separately for at least one year since the decree of judicial separation was issued, either of them may apply for divorce after judicial separation in India as per Section 13 (1A)(i) of Hindu Marriage Act, 1955.

 

Q- What is the effect of judicial separation on marital relation under Hindu Marriage Act?

A- After marriage, husband and wife are bound by law to stay in each other’s company, to cohabit and maintain conjugal relations with each other. The provision of judicial separation in Hindu Marriage Act legally allows them to stay apart from each other for reasons as provided under the Act. Although they can stay separate, they still remain a husband and wife in the eyes of law. Hence, the husband is still bound to pay maintenance for his wife. During judicial separation, husband and wife get time to analyze their marriage and give each other a second chance.

 

Q- What is the time period of judicial separation?

A- A husband and wife can apply for judicial separation anytime after marriage unlike divorce petition (whereby they should have been married for at least 1 year). Once a decree of judicial petition has been passed, there is no deadline for the couple for not staying together. However, after living separately for 1 year since decree of judicial separation under Hindu law is passed, either husband or wife can serve the other with legal notice for divorce.

 

Q- What are the grounds for divorce under Hindu law?

A- Hindu Marriage Act Section 13 (1) provides for grounds based on which both husband and wife can seek divorce. Section 13 (2) provides for grounds exclusive to the wife to safeguard married women’s rights. The divorce grounds under Hindu Marriage Act, 1955 include cruelty, adultery, bigamy, desertion, religious conversion, unsoundness of mind, venereal disease, etc. Most of them are also the grounds of judicial separation under hindu law. 

Written By:
Ridhi Khurana

Ridhi Khurana

Gurgaon

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