Separation Agreements and Judicial Separation:

Under Shastric Hindu Law, a wife was allowed to live separately from her husband under certain exceptional circumstances and still claim maintenance. During the Raj, the law was developed judicially, culminating in its codification in 1946 in the Hindu Married Women's Right to Separate Residence and Maintenance Act, 1946. This provision has been re-enacted in Section 18(2) of the Hindu Adoption and Maintenance Act, 1956. No other Indian matrimonial law makes such a provision. Section 18(2) states: A Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance:

1. if he is guilty of desertion, that is to say, abandoning her without reasonable cause and without her consent or against her wishes, or of willfully neglecting her;
2. if he has treated her with such cruelty as to cause a reasonable apprehension in her mind that it would be harmful or injurious to live with him;
3. if he is suffering from a virulent form of leprosy;
4. if he has any other wife living;
5. if he keeps a concubine in the same house in which his wife is living or habitually resides with a concubine elsewhere;
6. if he has ceased to be a Hindu by conversion to another religion;
7. if there is any other cause justifying her living separately.

This provision is entirely different from separation agreements or judicial separation. In some cases, a wife may not wish to obtain a decree for judicial separation, yet she may not want to live with her husband. It may also be the case that no ground for judicial separation is available to her. In such situations, if a ground is available to her under Section 18(2) of the Hindu Adoption and Maintenance Act, 1956, she may live separately from her husband and claim maintenance from him.

When a decree of judicial separation is passed, it is no longer obligatory for either party to cohabit with the other. However, separate residence under Section 18 is not of the same character. For example, an order for separate residence and maintenance on the grounds that the husband has a second wife living will subsist only while the second wife is alive. If the second wife dies, the other wife cannot insist on living separately. Similarly, even if the second wife is alive but the husband has abandoned her, the other wife cannot insist on living separately unless she has another ground available to her under Section 18(2).

A decree of judicial separation is a judgment in rem and will remain operative until rescinded, while this is not the case under Section 18. Under Section 18(2), the wife may choose to live with her husband at any time without obtaining any order from the court. In judicial separation, the court may order maintenance under Sections 24 and 25 and settlement of property under Section 27 of the Hindu Marriage Act, 1955. This cannot be done under Section 18 of the Hindu Adoption and Maintenance Act, 1956. Furthermore, if cohabitation is not resumed for a period of one year or more after a decree for judicial separation, the parties may obtain a divorce. This cannot be done under Section 18(2), even if the wife lives separately from her husband for any number of years.

Except for Muslim law, all other Indian matrimonial statutes contain a provision for judicial separation, although the provisions are not identical in all statutes. Under the Hindu Marriage Act, 1955, either a wife or husband can sue for judicial separation on any one of the fault grounds stated in Section 13(1). Similarly, under the Special Marriage Act, 1954, both the husband and wife can sue on any one of the fault grounds laid down in Section 27(1A). Additionally, the husband can sue for judicial separation on the ground of failure to comply with a decree for restitution (no period has been prescribed).

End-Notes:

• In Rohini Kumari v. Narendra Singh, AIR 1972 SC 459; (1972) 1 SCA 152; (1972) 2 SCR 657; (1972) 1 SCC 1.

Written By: S Kundu & Associates
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