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Judicial Separation Under Hindu Law

The following are the same reasons for judicial separation by the Special Marriage Act of 1954 as they are in the Hindu Marriage Act of 1955:
Each party to a union can submit a petition asking for a judicial separation decision based on any of the previously listed grounds:

  • The other party had willingly engaged in sexual activity with someone other than their spouse since the marriage was formally consummated;
  • After the marriage was formally consummated, the other party cruelly treated the petitioner;
  • The petitioner has been abandoned by the other party for a minimum of two years in a row prior to the petition being presented.

  • The other partner has converted to a different religion and is no longer a Hindu;
  • The other party had either suffered from a mental illness of such a nature and severity that it is not reasonable for the petitioner to coexist with the respondent, or has been permanently insane.
The opposing side has been afflicted with an aggressive and terminal type of leprosy; alternatively The other person has either renounced the outside world by joining a religious organisation, or the other party had been afflicted with an infectious form of venereal disease.

The opposing party hasn't been mentioned as being alive by those who would have heard about it if it were still alive for a minimum of seven years; that after an order for judicial separation was issued in a procedure in which they were parties, there hasn't been any return of cohabitation among both parties to the wedding for a year or longer; or that for a year or longer following the issuance of a decree for the restitution for conjugal rights in a procedure in which they were parties, there has not been a restoration of conjugal rights between the two parties to the marriage.

The Following Other Reasons Are Also Accessible To A Wife In Order To File For Judicial Separation:
The spouse separated from her after their marriage was formally consummated, or the spouse of the former was still living when the marriage was formally consummated. In either scenario, the other spouse became alive at the moment the petition was submitted;

The spouse has engaged in acts of bestiality, sodomy, or rape since the marriage was formally sealed; or In a case under Section 125 in the Code of Criminal Procedure of 1973 (Act 2 of 1974), or under corresponding Section 488 in the Code of Criminal Procedures, (5 of 1898), a decree and order, as the case could be, has been passed against a husband awarding maintenance for the wife notwithstanding the fact that she was living apart and that cohabitation between the parties has not resumed for one year or upwards since the passing of such decree or order; or Her marriage, whether it was consummated or not, was formally dissolved before she turned fifteen, and she renounced the union both after turning fifteen and before turning eighteen. The petitioner and respondent are no longer required to live together following the issuance of a judicial separation decision.

The Legal Separation Custody Petition may be submitted prior to Family Court; Additional District Judge (ADJ); District Judge By its very nature, the stated subject is complicated. For this reason, we constantly advise our clients and visitors to see one of our empanelled solicitors for independent legal counsel. In these situations, our attorneys analyse the relevant sections of The Special Marriage Act, 1954, the Code of Civil Procedure, 1908, and Other pertinent Acts, Judgements, and Citations in order to determine the best course of action for our clients.

Even so, the topic of how to interpret the laws, rulings, and citations is far more complicated since it necessitates a careful analysis of relevant statutes, procedural procedures, and legal precedents in the context of a particular set of circumstances and facts. The benefit of legal separation is the fact that it allows the parties to live their lives independently of one another without the other spouse interfering. As the marriage is not dissolved, the parties have an opportunity to make amends. The parties are still legally wed to one another and are not permitted to get married again.

The first step towards divorce is judicial separation. The opportunity for the two parties to work out their issues is the main goal of judicial separation. The principal legal differentiation between judicial separation and divorce is that the former allows for the remarriage of both parties, whereas the later does not. The terms agreed upon for the decree for judicial separation may also be taken into consideration by the court in any application to obtain a decree of divorce.

A legal separation, sometimes called a "judicial separation," provides a way to dissolve a marriage without going through a divorce. It allows you to keep your status as a married couple or civil partner while formally deciding on things like your living arrangements and finances. Aformal letter conveying the intention of a judicial separation sent by one partner for the other one is known as a legal notice of judicial separation.

However, married couples can live apart while being legally married thanks to a legal procedure called judicial separation. A judge will issue a Decree of Judicial Separation, which lays out the terms under which you and your spouse will ceased to live together. Being separated by court precludes you form getting married again.

Time peirod The district court may hear a petition for judicial separation from either the husband or the wife, provided that the petition is filed on one of the grounds listed in sub-section (1) [and sub-section (1-A)] of section 27 [which is substituted by Act 29 of 1970, Section 2 (w.e.f. 12.8.1970).] on which a petition for divorce might have been filed; or (b) for failing to abide by a ruling for the restoration of conjugal rights; and the Court may order judicial separation in accordance with the aforementioned grounds if it is satisfied with the veracity of the claims made in the petition and finds no justification for denial of the application.

Mrs.Vase Lakshmi Pragna vs. Vase Ananda Rao In response, respondent advocate P.N. Murthy argued that the definition of "district court" in Section 2(e) is inclusive and includes both Principal District Court Judges & Additional District Judges. He explained that the Andhra Pradesh Civil Courts legislation provides for the appointment for Additional District Judges, who carry out the same duties as District Judges, as well as the formation of District Courts.

The Court came to the conclusion that both Principal District Judges & Additional District Judges should be included in the definition of "district court" per Section 2(e). "Such comprehensive definitions are never regarded as a complete list of all the things or entities that are listed in the definition. The Court pointed out that an inclusive definition of this kind would imply that other classes or categories of things or entities could fall under its purview even if they aren't listed in the definition.

The Bench further said that it is evident from a plain reading through the A.P. Civil Courts Act that the Additional District Judge and the Principal District Judge are components of the District Court. The District Judge & the Additional District Judge were clearly members of the District Court according to this clause (Section 11 of " A.P. Civil Courts Act, 1972).

This becomes important because Section 27 of the Special Marriage Act mandates that an application be submitted to the District Court rather than the Principal District Judges. In light of these factors, the court upheld the idea that a divorce petition ought to be submitted to the Principal District Judge, who has the authority to either take up the case directly or refer it to the Additional District Judge.

Consequently, the petition was denied.

The partners choose judicial separation when they are unable to coexist and do not wish to end their marriage. The British Government adopted judicial separation for a remedy in India. The religious courts did not endorse divorce under the common law system. The only divorces allowed by the ecclesiastical courts were "divorcium mens et thoro," or divorce from board and lodging. This type of divorce prevented the divorcing couple from getting married again. Today, it's known as Judicial Separation, which allows a couple to live apart without going through a formal divorce.

The Special Marriage Act Of 1954's Section 23 Discusses Judicial Separation And Provides The Following Explanation:
  1. For the following reasons, either party may petition the district court for judicial separation:
    Any basis specified in Sections 27(1) and 27(1-A) upon which a divorce petition may have been filed; where the decree of the recovery of conjugal rights was not followed. Additionally, the court may order judicial separation in accordance with Section 23 if the party requesting relief is successful in persuading the judge that the claims made are true.
  2. The parties are permitted to live apart under the judicial separation decision. Nonetheless, if any party applies to the court with a request to have the order of judicial separation rescinded, the court retains the right to do so at any moment.
The court has the authority to revoke the decision of judicial separation if it is satisfied that the parties have made their statements and finds it to be reasonable to do so.

The Hon'ble Haryana and Punjab High Court held in Bhagwan vs. Amar Kaur, that the court is free to order judicial separation even though this hasn't been requested if, in a divorce petition, sufficient grounds for divorce cannot be established and a decree of judicial separation may be granted on those grounds. Amarriage ends with a divorce. All legal obligations and rights resulting from a marriage end when a divorce decision is given.

Parties to a divorce are also free to get married again and lead happy lives in their own right. The reasons for filing for divorce are outlined in Section 27 of the Special Marriage Act of 1954. Reasons for each party's side: The following are the grounds listed in Section 27(1) on which either party may file for divorce:
  1. Infidelity: It would be considered adultery for either party to have sex with anybody other than their husband. Divorce based on adultery is a legal option for both husband and wife. Adultery was illegal up until 2018 in accordance with Indian Penal Code Section 497. However, the Honourable Supreme Court decriminalized adultery in the Joseph Shine v. Union of India decision. Adultery is now simply a reason for divorce.

  2. Abandonment: The aggrieved party may file for divorce on the grounds of desertion if they have been apart from each other for an uninterrupted amount of time equal to or greater than two years. The two-year timeframe needs to start as soon as the divorce petition is filed. It was decided in the Lachman Utamchand Kiriplani vs. Meena Alias Mota case that desertion includes both virtual and physical separation when the couple remains together but intentionally ignores the other spouse. It would also be considered constructive desertion if there is no fulfilling of the obligations associated with the marriage.

  3. Detention: The side who feels wronged may file for divorce if the other spouse is serving a term of at least seven years or more for a crime they committed per the Indian Penal Code, 1860.

  4. Inhumanity: The 1954 Special Marriage Act omits a definition of cruelty. A broader meaning can be attributed to cruelty because its definition has not been restricted. Cruelty can take on any form and can be either physical or emotional. A couple may legally file for divorce if they can demonstrate that they had been subjected to cruel treatment and can substantiate their claims. It was decided that ending a pregnancy is not cruel in the case from 1988 of J.L. Nanda vs. Veena Nanda. Therefore, it cannot constitute a legal basis for a divorce.

  5. Mental instability: The unhappy party may file for divorce if one of the married parties has a mental illness that prevents the other spouse from supporting the mentally impaired spouse or if it is not reasonable for him or her to live with the mentally challenged spouse.

  6. Dermatological disorders: Sexually transmitted diseases fall under the category of venereal diseases. Any sexually transmitted illness that one party has or has had provides a legal basis for the other spouse to file for divorce. According to the court's ruling in X vs. Hospital Z, a spouse who has a sexually transmitted illness in this case, HIV must have acquired the illness before marriage and thus be prohibited from being married.

  7. Leprosy: Dismissed by the Honourable Supreme Court of India during the case of Union of India v. Pankaj Sinha (2018) 2 SCC 1502.

  8. Death assumption: The petitioner may file for divorce if the respondent has not been in contact with anyone for the past seven years, particularly those who would have expected to hear from them if they were still living. In this case, the petitioner bears the burden of proof.

 A wife may file for divorce in district court on the grounds listed below, per Section 27(1-A): 1. Bestiality, Sodomy, or Rape If the husband is found guilty of sodomy, rape, or bestiality, the woman may file for divorce in district court. The term "bestiality" refers to human sexual relations with animals. The Indian Penal Code, 1860, Section 377, lists both sodomy & bestiality as crimes. According to Section 377 of the Indian Penal Code, 1860, a wife may file for divorce from her husband if he performs sodomy against her and is found guilty,as was the case in the 1959 case Bamption v. Bamption, 2 All ER 766.

"Acts of sodomy, forcible sexual activity, and adoption of unnatural means that are imposed upon the other partner leading to unbearable pain to such an extent that the other spouse is forced to stay away would undoubtedly constitute a ground to seek separation and a decree of divorce," the Hon'ble High Court of Haryana and Punjab stated in Preeti Kumari versus Neelkanth Kumar (2018).

2. Separation If a decree has been granted in the wife's favour under Section 18 in the Hindu Adoption and Maintenance Act, 1956, or Section 125 of the Code of Criminal Procedure, 1973, she may file for divorce, even if the parties have been living apart and the cohabitation has not resumed for at least a year since the decree's issuance.

The grounds for a divorce can be filed with the court by any party according to Section 27(2).
The following are listed as the grounds:
  • The division of justice It becomes a legitimate basis for filing for divorce if the parties have not lived together for a year or longer following the issuance of the judicial separation judgement.

  • Return of Complementary Rights It becomes a legitimate basis for filing for divorce if the parties have not lived together for a year or longer following the issuance of the decree of restoration of conjugal rights. The procedures to be undertaken in the event of a divorce through mutual consent are outlined in
Section 28 of the 1954 Special Marriage Act. The terms are listed below:
  1. The parties may jointly file a petition for divorce by mutual consent with the District Court if they have mutually decided to end their marriage due to their inability to cohabitate and have been living apart for more than a year.

  2. After hearing from both parties and doing any necessary investigations, the district court may grant a divorce by mutual consent if the petition is not withdrawn within six months or within eighteen months of the date it was presented. It was decided in the 1995 Supp (3) SCC 414 decision in Rachna Mittal vs. Lt. Kuldeepak Mittal that both parties' consent to terminate their marriage must be granted freely and without coercion or malice.
Final-The Outcome:
The goal of the Special Marriage Act of 1954's remedy of judicial separation and divorce is to guarantee that parties who are unable to maintain their relationship for any of the previously listed reasons covered by this Act may pursue a relief of judicial divorce or separation as they see fit. While judicial separation as a remedy continues to provide some opportunity for the estranged couple to get back together and spend more time together, divorce essentially ends the marriage and releases the pair from all obligations and rights associated with it.

Award Winning Article Is Written By: Mr.Somitra Vardhan Dubey
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