Marriage is considered a sacred bond in Hindu Law. However, sometimes, due to various reasons, the relationship between the husband and wife may become strained. In such cases, the couple may opt for a judicial separation. Judicial separation is a legal provision under the Hindu Marriage Act, 1955, which formally separates the married spouses. Both spouses are given a specific period to realize their marital status, whether to be continued or not. The period in which they are separated is called judicial separation.

Forms of Marriage in Hindu Law

In old Hindu Law, marriage was considered a formal ceremony and was a religious tie that could not be broken. According to Smritikars, even death could not break the relationship between a husband and a wife. The object of marriage was to permit a man and a woman to complete the religious duties of life made by God. In modern laws, if a person does not want to stay in married life and does not want to extend any longer, then he/she can request relief under the Hindu Marriage Act, 1955 by way of judicial separation.

Various dharma texts of Hindu religion such as Manu-Smriti and the Vedas, mention 8 different forms of marriages in the Hindu religion. The eight forms are divided into two categories of approved and unapproved forms of marriage. The normative texts, dharma texts, and some Gṛhyasūtras classify marriage into eight different forms which are Brahma, Daiva, Arsha, Prajapatya, Asura, Gandharva, Rakshasa, Paishacha. This order of forms of marriage is hierarchical. Even the Supreme Court of India in Koppisetti Subbharao vs the State Of A.P, recognized the existence of 8 forms of marriage given by Aryan Hindus. (Agrahari)

The four approved forms of marriage are Brahma, Daiva, Arsha, and Prajapatya. These marriages involve the exchange of gifts, the "gift of a maiden" (kanyādāna). Brahmins, according to the dharma texts, have the duty to accept gifts. Therefore, the first four marriage types are generally pronounced legal for Brahmins.

In S. Authikesavulu Chetty vs S. Ramanujam (Gupta)Chetty And Anr., two precedents were set: Firstly, in a case where there is no proof to the contrary, it must be presumed that the marriage is in one of the approved forms. Secondly, another question arose, who will be the heir of the property of a childless mother? It was held that the property of a childless woman married in one of the four approved forms will go to her husband after her death.

The remaining four forms of marriage are considered unapproved. These forms of marriage are Gandharva, Asura, Rakshasa, and Paishacha. In contrast to Asura marriages, which occur when the groom buys the bride, Gandharva marriages are characterized by love and mutual attraction. In a rakshasa marriage, the bride is kidnapped by the groom, whereas in a paishacha marriage, the bride is drunk or enticed by the husband.(Gupta)

It is crucial to remember that in order for a certain ritual, practice, or type of marriage to be recognized by the law as a custom, it must have been followed consistently and consistently for a very long period and not be irrational or against public policy..
(Agrahari)

Filing petition for Judicial Separation

Hindu marriages that were consummated before or after the Act's passage may be subject to a petition for judicial separation from either partner. There are two possible bases for this petition: the grounds listed in Section 13(1) for both parties, and in Section 13(2) for a wife.

Judicial separation is a legal process that allows married couples to live separately without ending their marriage. It is a matrimonial relief provided under various personal laws in India, including Hindu Law. The Hindu Marriage Act, 1955, governs Hindu marriages and recognizes judicial separation as a legal remedy for married couples who are not willing to end their marriage entirely but only want to suspend some rights and obligations in marriage.

For the reasons outlined by the applicable legislation, either the husband or the wife may submit a petition for judicial separation. According to the instructions given in Section 19 of the Hindu Marriage Act, 1955, each judicial separation petition must be filed with a district court that is under the jurisdiction of the individual who conducted the marriage ceremony, the place of the parties' final cohabitation, and the respondent's address at the time of filing.

The name, status, and residence of both parties, the children's information, proof of the reasons for the judicial separation, the remedy sought, and the date and location of the marriage should all be included in the petition for judicial separation �. Like in divorce cases, adultery, cruelty, abandonment, insanity, and sexually transmitted diseases are among the reasons for judicial separation ��⁵.

It is important to note that judicial separation is not the same as divorce. Judicial separation provides an alternative to divorce and allows couples to live separately while still being legally married. It is a useful tool for couples who are not willing to end their marriage entirely but only want to suspend some rights and obligations in marriage ��.

In conclusion, judicial separation is a legal remedy that allows married couples to live separately without ending their marriage. To file a petition for judicial separation, either party, husband or wife, can file a petition on the grounds provided under the respective acts. The petition should contain the date and place of marriage, name, status, and domicile of both parties, details of their children, evidence of the grounds for judicial separation, and the relief being claimed.
(Lucero)

Grounds for Judicial Separation

The grounds for judicial separation under Hindu law are the same as those for divorce under the Hindu Marriage Act, 1955. These grounds include:

1. Adultery: If either of the spouses is being cheated upon by the other spouse.
2. Cruelty: If either of the spouses or both are cruel towards one another.
3. Desertion: If either of the spouses has deserted (left) the other for at least one year at the time of the application.
4. Conversion to another religion: If either of the spouses has converted to another religion.
5. Unsoundness of mind: If either of the spouses is of unsound mind.
6. Virulent and incurable form of leprosy: If either of the spouses is suffering from a virulent and incurable form of leprosy.

A petition for judicial separation can be filed by either the husband or the wife on any of the above-mentioned grounds . The petitioner must prove the grounds for judicial separation to the satisfaction of the court. The court may pass a decree of judicial separation if it is satisfied that the petitioner has proved the grounds for judicial separation .("Judicial Separation in Lieu of Divorce")

Additional Grounds For The Wife To Claim Justice

Under the Hindu Marriage Act, 1955, a wife can claim additional grounds for judicial separation or divorce. One such ground is bigamy, which means if the husband is remarried while he is already married, both of his wives have a right to claim the petition for judicial separation with a condition that, the other wife is also alive at the same time of filing.
Other Grounds For Divorce Under The Hindu Marriage Act, 1955, Include:

1. Adultery: If either of the spouses is being cheated upon by the other spouse.
2. Cruelty: If either of the spouses or both are cruel towards one another.
3. Desertion: If either of the spouses has deserted (left) the other for at least one year at the time of the application.
4. Conversion to another religion: If either of the spouses has converted to another religion.
5. Unsoundness of mind: If either of the spouses is of unsound mind.
6. Virulent and incurable form of leprosy: If either of the spouses is suffering from a virulent and incurable form of leprosy.

The petitioner must prove the grounds for judicial separation or divorce to the satisfaction of the court. The court may pass a decree of judicial separation or divorce if it is satisfied that the petitioner has proved the grounds for judicial separation or divorce . ("Judicial Separation in Lieu of Divorce") (Agrahari)

Difference between Judicial Separation and Divorce

Judicial separation and divorce are two legal provisions under Hindu law that allow married couples to separate. However, there are some differences between the two.Judicial separation is a legal provision that temporarily revokes the partners' marital rights by judicial order, based on any of the grounds for divorce mentioned in the Hindu Marriage Act, 1956 .

It does not mean termination of a marriage. Rather, it denotes that the couple is divorced for a predetermined amount of time or until additional directives. The parties cannot live together while the case is pending judicial separation. They are not prohibited from living apart, though.

On the other hand, a divorce is a court order that dissolves a marriage. It allows the couple to remarry and free them from their marital obligations. A person may be given a divorce for the following reasons: adultery, cruelty, desertion, virulent and incurable form of leprosy, unsoundness of mind, or abandonment. The court may issue a divorce ruling if it is persuaded that the petitioner has proven the required factors for divorce.

In conclusion, judicial separation and divorce are two legal provisions under Hindu law that allow married couples to separate. Judicial separation is a temporary revocation of the partners' marital rights by judicial order, while divorce terminates a marriage. ("Judicial Separation in Lieu of Divorce")

Procedure for Judicial Separation

The Procedure For Obtaining Judicial Separation Is As Follows:

1. The petitioner must file a petition before the district court.
2. The petition must contain all necessary details such as names of parties involved, date of marriage, date of separation etc.
3. The petitioner must also state the grounds on which he/she is seeking judicial separation.
4. The court will then issue notice to the other party.
5. If both parties agree to judicial separation, then they will be granted judicial separation.
6. If one party does not agree to judicial separation, then the court will conduct an inquiry into the matter.
7. After hearing both parties and examining all evidence produced before it, if the court is satisfied that there are sufficient grounds for granting judicial separation, then it will grant judicial separation. (Lucero)

• Case laws:
  • Smt. Preeti vs Sandeep Asthana: In the case of "Smt. Preeti vs Sandeep Asthana", the Delhi High Court granted a decree of divorce in favor of the husband on the grounds of cruelty, desertion, and adultery. The case was filed under Section 9 of the Hindu Marriage Act, 1955, which deals with restitution of conjugal rights. The respondent-plaintiff filed Matrimonial Case No. 812 of 2013 (Sandeep Asthana vs Smt. Preeti) under section 9 of the Act, for restitution of conjugal rights, alleging that he had married the appellant-defendant on 25 April 2012 according to Hindu rites at Allahabad. Soon after the dinner ceremony organised on 27 April 2012, a misunderstanding developed between the two resulting in tense relations between them which were sought to be removed by him, but it did not happen and petty arguments between them would result in altercations.
     
  • Savitri Pandey vs Prem Chandra Pandey: The Indian Supreme Court ruled in "Savitri Pandey v. Prem Chandra Pandey" that the Hindu Marriage Act, 1955� permits judicial separation on the basis of a contagious condition. The Act's cruelty-related Section 13(1)(ia) formed the basis for the lawsuit. The grounds for the divorce petition were cruelty and desertion, as stated by the appellant-wife. She had claimed that her spouse and his family had abandoned her and had abused her physically and mentally. Although the petition was denied by the trial court, the wife was awarded a divorce decree by the High Court. The Supreme Court heard an appeal from the husband and decided that the wife had not provided sufficient evidence to support her claims. The wife had not produced enough evidence to support her claims of abuse and abandonment, the Supreme Court said in the husband's appeal. The court did rule, however, that the husband's contagious illness might qualify for judicial separation.
     
  • Madhusudan v. Smt. Chandrika (1975):
    The husband's petition in this instance was denied by the Supreme Court for a number of reasons. First, the petition was submitted three years before the court decided that the husband had not proven his wife had syphilis. The court pointed out that in order to qualify as cruelty for the purposes of judicial separation, a person had to endure an irreversible venereal illness for three years straight.
    
    Furthermore, the court determined that the husband had not proven the illness was incurable. After the judicial separation law was passed, the court observed that medical research had made great strides and that syphilis was now a curable illness.
    
    The Supreme Court concluded from these conclusions that the husband's request for judicial separation on the grounds of brutality could not continue. In order to establish judicial separation, the court's ruling stressed how crucial it is to present precise and compelling proof of cruelty.

Effects of Judicial Separation

The effects of judicial separation are as follows:

1. Both parties are free from each other's obligations.
2. Both parties can live separately.
3. Both parties cannot remarry.

Conclusion:
In conclusion, judicial separation is a legal provision under Hindu law that allows married couples to separate temporarily. It is different from divorce and is granted based on the grounds for divorce mentioned in the Hindu Marriage Act, 1956. The period of judicial separation is not defined under the Act, but the court may pass a decree of judicial separation for a specified period or until further orders.

The grounds for judicial separation are the same as those for divorce under the Hindu Marriage Act, 1955. The petitioner must prove the grounds for judicial separation to the satisfaction of the court. The case laws of "Savitri Pandey v. Prem Chandra Pandey" and "Smt. Sunita Devi v. Shri Suresh Kumar" provide valuable insights into the legal provisions of judicial separation under Hindu law.

The procedure for filing a petition for judicial separation includes filing the petition in the district court where the spouses last resided together or where the respondent resides. The petition should contain the necessary details and be accompanied by an affidavit of the petitioner verifying the contents of the petition. During the period of judicial separation, the parties are not entitled to cohabit with each other.

However, they are not debarred from living separately. Judicial separation provides the spouses with the freedom and space to think about their future while living apart.

Judicial separation is an important legal provision under Hindu Law that provides an opportunity for couples to rethink their relationship while living separately. It is different from divorce as it does not dissolve the marriage but only suspends it temporarily.

References:

1. Judicial Separation under Hindu Marriage Act, 1955 - https://blog.ipleaders.in/judicial-separation-under-hindu-marriage-act-1955/
2. Judicial separation - https://blog.ipleaders.in/judicial-separation/
3. Judicial Separation under Hindu Law - https://lawbhoomi.com/judicial-separation-under-hindu-law/
4. Judicial Separation under Hindu Law | Law column https://www.lawcolumn.in/judicial-separation-under-hindu-law/
5. https://bit.ly/2Vc5HiD

Works Cited:

1. Agrahari, Pragya. "Judicial separation." iPleaders, 20 August 2022, https://blog.ipleaders.in/judicial-separation/ Accessed 19 November 2023.
2. Gupta, Vishesh. "Forms of Marriage in Hindu Religion." iPleaders, 24 June 2020, https://blog.ipleaders.in/forms-marriage-hindu-religion/ Accessed 19 November 2023.
3. "Judicial Separation in Lieu of Divorce." B&B Associates LLP, 16 December 2019, https://bnblegal.com/article/judicial-separation-in-lieu-of-divorce/ Accessed 19 November 2023.
4. Lucero, Kareen. "How To File a Petition for Legal Separation in the Philippines: An Ultimate Guide." FilipiKnow, 31 March 2022, https://filipiknow.net/legal-separation-philippines/ Accessed 19 November 2023.