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FAMILY LAW-I

B.A. LL.B. (Hons.)

JUDICIAL SEPARATION (SECTION 10)


The Hindu Marriage Act, 1955
Varsha Goyal-Wright Assistant Professor vgoyal@amity.edu

JUDICIAL SEPARATION
Section 10 of the Hindu Marriage Act deals with judicial separation. The section lays down-

Section 10 (1) Either party to the marriage, whether solemnised before or after the commencement of the Act, may present a petition for a decree for judicial separation on any grounds specified in sub-section (1) of Section 13 and in the case of a wife also on any of the grounds specified in subsection (2) thereof, as grounds on which a petition for divorce might have been presented.
Section 10 (2) Where a decree of judicial separation has been passed, it shall no longer be obligatory for the petitioner to cohabit with the respondent, but the court may on the application by petition of either party and on being satisfied of the truth of the statement made in such petition

rescind the decree if it considers it just and reasonable to do so.


Judicial separation is a state of relations between husband and wife when they are under no obligation to live together or to perform marital obligations for each other. It is temporary suspension of marital rights between the spouses as a result of decree passed by the court on any one of the grounds mentioned in Section 13 (1) & (2) of the Hindu Marriage Act, 1955. During the course of judicial separation, either party may be entitled to get maintenance from the other if situation so warrants. But during this period husband and wife would not acquire the competence to marry afresh. The right of fresh marriage would be available to them only after the dissolution of marriage.

Section 10 provides that either party to marriage may present a petition praying for a decree of judicial separation on any grounds specified in Section 13 (1) & (2) thereof, as grounds on which a petition for divorce might have been presented.
Under the Marriage Laws (Amendment) Act, 1976, the section has been completely overhauled. The grounds of judicial separation are virtually the same which have been provided to be grounds of divorce under Section 13 (1) & (2) of the Act and accordingly the judicial separation, under the amended Act of 1976, can be obtained under the following grounds: (1) Adultery: Where the other party has, after the solemnisation of the marriage, had voluntary sexual intercourse with any person other than his or her spouse.

(2) Cruelty: Where the other party has treated the petitioner with cruelty. (3) Desertion: Where the other party has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition. (4) Conversion: Where the other party has ceased to be a Hindu by conversion to another religion. (5) Unsoundness of mind: Where the other party has been of incurable unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent the petitioner cannot reasonably be expected to live with the respondent. (6) Leprosy: Where the other party has been suffering from a virulent and an incurable form of leprosy.

(7) Venereal disease: Where the other party has been suffering from venereal disease in a communicable form. (8) Renunciation of world: Where the other party has renounced the world by entering any religious order. (9) Presumed death: Where the other party has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it had that party been alive. Additional grounds to wife: The following additional grounds are available to wife for the judicial separation: (1) Bigamy: Any other wife of the husband was alive and lawfully married to the husband at the time of the solemnisation of the marriage of the petitioner.

(2) Rape, Sodomy or Bestiality: That the husband has since the solemnisation of the marriage, been guilty of rape or sodomy or bestiality. (3) Non resumption of cohabitation after decree or order of maintenance: That where a suit under Section 18 of the Hindu Adoption and Maintenance Act or in a proceedings under Section 125 of the Cr. P. C. 1973, a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards. (4) Option of puberty: That her marriage was solemnised before attaining the age of fifteen years and she has repudiated the marriage after attaining the age of fifteen years but before attaining the age of eighteen years.

Court may rescind the decree: Where a decree for judicial separation has been passed, it shall no longer be obligatory for the petitioner to cohabit with respondent but the court may on application by petition of party and on being satisfied of the truth of the statements made in such petition, rescind the decree if it considers it just and reasonable to do so (Section 10 (2)).
The power to rescind though available under Section 10 (2), must be exercised with circumspection only to achieve the purpose of giving every opportunity to the parties for reconciliation.

The question whether the ground urged is sufficient to make the case fit for recession of decree comes after the Court is satisfied about the truth of the averments made in the application.

S. Narasimha v. Vijaya Bai, AIR 1978 Kant. 115 The Karnataka High Court has decided that the statute does not refer to any specific grounds on which the decree for judicial separation can be annulled or rescinded. Section 10 (2) of the Act, however, empowers the court to rescind the decree for judicial separation if it considers it just and reasonable to do so. A party against whom a decree for judicial separation is passed cannot succeed in getting the decree rescinded, in the absence of other circumstances which justify an order of rescission to be passed, merely by saying that he or she is willing to rejoin and live with the other spouse. The power conferred on the Court under Section 10 (2) has to be exercised with great circumspection.

The following are the circumstances in which the court may rescind the decree: (1) If the decree had been obtained ex parte, by showing reasonable excuse for his or her absence, or for his or her alleged desertion. (2) If the parties had cohabited with each other, after the decree, or have come to terms with each other and have again begun to live as husband and wife. (3) If the opposite party has condoned the offence. (4) If the opposite party has satisfied the court that he or she is willing to live as husband and wife and is not going to do any such thing in future on which judicial separation was granted (Section 23). (5) If the opposite party is cured of leprosy or venereal disease, or unsoundness of mind and in spite of that, the

petitioner is not willing to resume cohabitation (Section 23).


Standard of proof: While awarding the relief, the Court must be satisfied beyond all reasonable doubt; what is required is that there should be strict inquiry into the matter. It does not mean that proof should reach certainty. But it must carry a high degree of probability. Incidents and effects of judicial separation: The following are the incidents and effects of an order of judicial separation: (1) That the marriage tie is not dissolved. (2) That after the passing of decree of judicial separation, the husband and wife are not bound to live together or dine together as judicial separation is separation from bed and board.

(3) After the decree of judicial separation it will not be obligatory for the parties to cohabit with each other. (4) It does not prevent the parties from subsequent resuming cohabitation and living together as husband and wife as originally they did. It is not necessary for them to undergo the ceremony of marriage again because their original marriage still subsists in spite of the decree of judicial separation. (5) A fortiori if either spouse marries during that period, he or she will be guilty of bigamy and will be liable for punishment prescribed by Section 17 of this Act. (6) The petitioner, if she be the wife, becomes entitled to alimony from the husband, and if he is the husband he can claim maintenance from wife under Section 25 of this Act.

(7) The wife shall, from the date of decree and till separation continues, be considered as a feme sole, i.e. independent woman with respect to property of every description. (8) The mutual rights and obligations arising from the marriage are suspended and the rights and duties prescribed by the decree are substituted therefor.

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DIVORCE (Section 13 of the Hindu Marriage Act, 1955)