This article deals with the judicial separation of husband and wife, according
to the Indian Marriage Act of 1955, Under the Hindu marriage. Marriage is
usually understood as a union of two person in a human relationship recognized
by an official agency. A union usually composed of men and women must abide by
laws, regulations, customs, beliefs and relationships. These laws, rules and
regulations stipulate the rights and obligations of partners
and agreements. Marriage is a close and equal bond between man and
It comes from the hand of God. God created men and women in his own
image, making them a body and unique. Although men and women are as equal as
God's children, they are fruitful and growing, but
the major difference between them allows them to give and receive each other.
Marital separation takes place when spouses in a
wedding stop dwelling collectively without getting divorced. Married couples can
also additionally separate as a preliminary step within side
the divorce procedure or to benefit angle on the wedding and determine whether
or not divorce is warranted. Other couples can also additionally separate as
an opportunity to divorce for monetary or non secular reasons, for tax purposes,
or to ensure persevering with retirement and/or medical health
insurance advantages for each spouses.
A separation may be initiated informally,
or there may be a legal separation with a formal separation agreement filed with
the court. As for a divorce, the latter can also additionally consist of
provisions for alimony, whether or not to have sole custody or shared
parenting of any children, and the quantity of child support.
Legal separation (sometimes legal separate alimony, divorce a mesetthoro, and
board divorce) is a legal process through which a couple can formalize an actual
separation while remaining legally married.
Concept of separation in Hindu law
The religious duties of marriage have three characteristics as follows:
- In cases in which children are affected, custody agreements are often
made through a court order for legal separation, in which sole custody or
joint paternity and maintenance of children are determined. Some couples get
one Separation as an alternative to divorce due to moral or religious
objections to the divorce.
- Legal separation does not automatically lead to divorce. The couple can
reconcile. In this case, they don't have to do anything to continue their
From another perspective, there are usually two forms of marriage in Hindu
- There is a permanent bond that cannot be severed once it is tied.
- There is an endless connection that is valid not only in this life but
also in the lives to come. A religious association in which the achievement
of Religious ceremonies are required. Hindu marriage was designed as a
religious ceremony and was officially performed to bestow certain blessings.
The consent of the parties did not have a significant place in ancient Hindu
law. Hindu marriage is based on the removal of the father's rule over his
daughter. The relationship between man and woman is very nice and it is the
religious duties of Hindu law. The religious ceremony is compulsory for all
types of marriage. The Hindu marriage law, 1955 have no specific provision
for any form of marriage.
- Arranged marriage and
- Love marriage.
Most Hindu marriages are still arranged marriages. The arranged marriage can
be carried out in the Brahma marriage form or in the Asura marriage form. The
asura form of marriage is a very common form of marriage among the Sudras,
but in high-ranking Hindus the Brahma marriage it is common and Gandharva
marriage is becoming very
popular with the younger generation. Marriage among Hindus, being
a spiritual and an unbreakable tie, execution
of particular ceremonies remains obligatory for a legitimate marriage.
There are 3 big regions in which the particular ceremonies are to be acted. They
- Sagai – This is a proper promise from the daddy to provide the woman in
- Kanyadan – This is the real gifting away of the woman in marriage with the aid
of using her father.
- Saptapadi – This existed in appearing a rite of attractive “saat phere” around
the sacred hearthplace with the aid of using the bride and groom. By
this overall performance of Saptapadi, it is concluded that the wedding
ceremony is solemnized. This makes the wedding absolutely unchangeable.
Under Section 7 of the Hindu Marriage Act, 1955 it is described as the
wedding which happens, have to be formal and with the consent of the parties.
Saptapadi is an important a part of the rite of marriage.
Hindu Laws additionally permit the inter-caste marriages among Hindu and a non-
Hindu however in a few unique provisions under Special Marriage Act, 1954.
The concept of judicial separation.
Judicial separation is a legal means for both parties to have time to think
about a troubled marriage. The law provides an opportunity for husbands and
wives to reconsider their relationship, while encouraging them to
live apart. Therefore, the law gives them freedom and independence
to reflect on their relationship. The road ahead is the last choice for both
spouses to divorce.
Article 10 of the Indian Marriage Act of
1955 established the legal separation of both spouses. People who get married
under the Indian Marriage Act of 1955 can apply for exemption from
legal separation by filing an application. After the order is approved, they no
longer need to live together. Any spouse who has been injured by the
other spouse can apply to the District Court for separation in accordance with
Article 10 of the Indian Marriage Act of 1955.
The following conditions must be met:
The wedding between the husband and married person ought to be celebrated
properly below Hindu wedding Act.
Every petition ought to according to Order VII Rule one of the Civil Procedure
Code, 1973 must contain:
- The respondent ought to be settled within the jurisdiction of the court
wherever the petitioner filed the petition.
- The husband and married person lived along for a specific amount of time
before the filing of petition.
- The date and place of marriage
- The person ought to be a Hindu, by his/her affidavit.
- Name, status, address of each the parties
- Name, DOB and gender of children (if any).
- Details of proceedings filed before filing the decree for judicial
separation or divorce
- For the judicial separation, the proof ought to prove the grounds.
- It is given under Section 10 of the Act; the relation will file a
petition for legal separation on the idea of the following grounds:
Adultery (section 3) means when one of the spouses voluntarily had sexual
intercourse with someone other than their spouse. Here the person concerned can
claim relief, but the sexual intercourse must take place after the marriage.
Revathi v Union of India and Ors
In this case, the Court ruled that
Section 497 of the IPC is prepared so that a husband cannot prosecute the
wife on charges of adultery for desecrating the sanctity of marriage. The woman
also did not allow the abusive husband to be prosecuted for injustice towards
her. Hence, neither husband nor wife have the right to fight each other with
the weapon of criminal law.
Abuse [section 13]:
If the spouse abuses the partner or causes him to
suffer physical or mental pain after marriage.
The victim can make a request for abuse:
ShyamSundar v. Santadevi
: In this case, the woman suffered great torture
from her husband's relatives after the wedding, and the husband remained lazy
and did not take any measures to protect his wife. The court ruled that
deliberate negligence to protect the wife is tantamount to a cruel behavior by
Abandonment [Article 13(1)(I b)]:
This section provides that if one
spouse leaves the other party for any reason at least two years before the
other party’s request, he or she leaves the other party without notice of
judicial separation. Right to be released victim. Case-In Guru Bachan Kaur's case
against Pretam Singh, the husband applied for a divorce 7 years after announcing
his departure. He never understood his wife's problem. His wife is also a
working woman, but the woman wants to live with her. The husband works at home.
The Supreme Court ruled that there is nothing more than mutual exclusion. One of
the parties must have left guilty.
Conversion/Apostasy [S 13(1) (ii)]:
If one of the spouses is based on a religion
other than Hinduism, the other spouse can apply to court separation for Falling
down. In Durga Prasad Rao's case against Sudharshan Swami, it was found that
in any of the circumstances, it is not necessary to formally renounce religious
beliefs or hold sacrificial ceremonies Indispensable. In the case of an
appeal, a question of fact arose. 13(1) (iii)]-One spouse in the marriage has a
mental illness, making it difficult for the other spouse to live
with the victim.
The other party can request
exemption from legal separation.
Case: Anima Roy vs. Prada (Bradbadh Mohan Ray)
In this case, it was discovered that the respondent suffered from an abnormal
disease 2 months after marriage. It was found that the respondent could
not determine the specific time of the onset of the disease.
Therefore, it is believed that the disease was not detected at the time
of marriage. Leprosy [§ 13 (1) (iv) ] - If a spouse has a disease such
as leprosy that cannot be cured, the other
party may apply for legal separation for having their time due to illustration- not can waste. 'A' has an abnormal illness and 'B' is the wife
When 'A' has an incurable disease and the doctor cannot understand itIn
this case, 'B' can file a legal separation application if she does
not wish to proceed with her husband. Venereal disease [Section 13 (1) (V)] - If
a party to the marriage or a spouse has an incurable and communicable disease
and the spouse is unaware of it at the time of the marriage, this may be a
valid reason for the spouse to to file an
application for judicial separation.
Figure - 'A' suffers from an abnormal
disease transmitted through communication. The disease that is
irrevocable. In this case, 'B', the wife of 'A', can apply in good faith
for separation of their two future children.
He renounced the world [§ 13
Paragraph 1 Letter Vi] - According to Hindu law ofGiving up the world means "Sannyasa".
Renunciation of the world means that the person has given up the world and lived
a holy life. He is considered a civilian dead. If a spouse renounces
the world to lead a sacred life, their partner can request a legal separation.
When "A" changed his religious beliefs and went to a certain
place, people couldn't find him either. When "B" A's
wife heard the news, she suffered tremendously. Therefore, you can apply
for separation. ·Civil death/suspected death [Article 13(1)(vii)]-If the person has not been
found for 7 years or more, and their relatives or anyone else has not
heard of them or is considered Has died. Here, the
other party can apply for legal separation.
Picture: "A" and "B" are husband
and wife for 4 years respectively, and the husband suddenly disappeared for
about 8 years. "B" means his wife has tried her best to find her husband in
these 8 years, but she can't find him. Therefore, "B" can apply for divorce
based on this kind of bigamy [section 13, section 2, letter
I]-indicating that the husband remarried during this period You are married and
your two wives have the right to separate in court, but only if
the other woman is still alive when the application is filed.
"A" and "B"-Husband and wife have been 5 years and they
are very satisfied with their
family. Suddenly, "A" marries another woman "C" without the consent
of another wife "B", and "C" does not know that "A" is married. C "I found it."
'You can request separation.
Rape, homosexuality or bestiality
If the husband is guilty of the crime of "A" and the crime of
"rape, bestiality or homosexuality", the woman has the right to seek separation
in court. With his wife for three years, if A’s husband raped another woman and
is found guilty, then B’s wife can petition the court
for termination of separation/puberty option [section 13(2)(iv))-if a girl is in
I was married before getting married 15 and she did itThe
right to demand judicial separation. Illustration- There is a lady of 14
years antique and she or he is from a tribal area.
There, infant marriage is a
completely not unusual place nature, her mother and father provide her as a
gift to the bridegroom without her consent. After marriage, this Act does now no
longer permit for leaving a courting with none valid reason. There have
to be precise grounds on which the partner can record a case for judicial
separation or divorce.
This Act has a wonderful rule to resolve the disputes between the spouses
and loose them from marital ties. In this case, she filed a petition for
judicial separation due to her underneath age.
|It is provided under Section 10 of the Hindu Marriage Act, 1955
||It is provided under Section 13 of the Hindu Marriage Act, 1955.
|A petition for judicial separation can be filed at any time after
||A petition for divorce can be filed only after one or more years of the
|It only temporarily suspends the marriage
||It is the end of the marriage.
|An act of adultery is a very big ground, by which anyone files the
||The husband and wife must be living in an adulterous relation then only
a party can file for divorce.
In our country, marriage is considered a sacred relationship, but if a person is
not satisfied with the marriage relationship, he should get out of the road of
marriage. People believe in the Indian Marriage Act of 1955, which
allows them to seek marriage immunity by filing for divorce. The law does not
allow the termination of the relationship without a valid reason. A spouse
can apply for a divorce for a specific reason. Perform judicial separation or
divorce. The law has excellent rules for resolving disputes between two parties
the husband is free from the bondage of marriage.
Written By: Preeti Bhagat,
BA LLB 2nd Year - Presidency University,
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