Article on "JUDICIAL SEPERATION" by Anjali Kumari

 

By Anjali kumari

course---BBA.LLB

semester--- 2^nd semester

collage--- Army Law Collage Pune

JUDICIAL SEPERATION

 

Introduction

According to old Hindu tradition Marriage is a relation which is indestructible and continues for coming 7 births, it is a tie between husband and wife which cannot be broken even after death. a husband is incomplete without a woman and a woman is also incomplete without his husband, they accept each other Infront of God and fire.

Now time has changed mentality has changed and now the meaning of marriage has also completely changed.Involvement of parents have been deceased in selecting the right partners for their sons and daughters. If they are bored with each other they try to dissolve their marriage, there are now thousands of reasons with their partners to get separated.

 

The valid marriage in today’s timestarts with pen and paper and ends with pen and paper.

Due to evolution in thoughts and time the perception regarding marriage has changed.  all the problems faced by husband and wife in period of marriage is considered in the Hindu marriage act, 1955.

 

Meaning of judicial separation

 

Judicial separation is the decree in which married couple are separated formally but the marriage bond does not get dissolve. It does not give full separation like divorce. The parties can seek permission from the court for not being bound to cohabit with each other. It is the decree passed by the in favour of petitioner.

It is also known as bed and board.

 

According to Hindu marriage act 1955

 section 5 of this act defines the marriage as valid if the following conditions are true:

·       Either party shouldn’t have any other living spouse at the time of the marriage.

·       Neither of the parties should be unsound mind.

·       Neither of the party has been subject to the habitual attack of mental disorder.

·       The age of the spouse should not fall within the decree of prohibited relationship which is given under section 3(g) of this act.

·       Not experiencing sapinda

Those who have married under this act can claim for legal or judicial separation and can file a petition for their partners

 

Section 10 -judicial separation.

Either party to a marriage, whether solemnized before or after the commencement of this act, may present a petition praying for a decree for judicial separation on any of the grounds specified in sub-section (1) of section 13, and in the case of a wife also on any grounds specified in sub-section (2) therefore, as grounds on whicha petition for judicial separation might have presented. (Grounds for judicial separation and divorce are same which is mentioned in section-13)

Where a decree for 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 made in such petition, rescind the decree if it considers it just and reasonable to do so.

 

Grounds of judicial separation – section-13

·      Adultery

·      Cruelty

·      Desertion

·      Conversion

·      Unsound mind

·      Leprosy

·      Venereal disease

·      Renounced the world

·      Presumed death

 

adultery ---either of the spouses is being cheated upon by others spouse.in case a husband or a wife knows that their respective spouse is married and that the other person is alive during petition; then the grounds for separation strengthens.

 

cruelty--- either of the spouse or both are cruel forone another.

 

Desertion ---either of the spouses is not alive and is missing for seven years and above.

 

Incurable or abnormality, either of the spouses is not in a sound condition.

 

Venereal or sexual diseases, either of the spouse is suffering from sexual diseases such as HIV, aids, genital herpes, syphilis, etc.

 

Rape, sexual harassment, molestation, bestiality and sodomy.

 

Renunciation of the world by either of the spouse on religious or spiritual grounds.

 

Conversion from one religion to another.

 

Leprosy--- if a party to a marriage is suffering from leprosy which can not be cured, the other party can claim a judicial separation as a remedy to think upon the marriage.

 

Presumed death---if the party has not been heard alive for 7 years or more than that so, in this case also he\she can claim for separation but it most of time this becomes reason for divorce.  

Additional grounds only for wife\women

there are few grounds only for wife, a wife is entitled to seek relief of judicial separation under section 13(2) of the Hindu marriage act, 1955.

The following grounds are:

·       Bigamy --- bigamy is the practice of having involvement in two marriages. if the husband has remarried when he is already married, both of wives have a right to file for judicial separation if the other wife is alive at the time of such filing.

·       Rape, sodomy or bestiality--- a wife has a right to file a petition against his husband for judicial separation if he has been involved in rape, sodomy and bestiality.

·       Decree of maintenance--- if the decree or order for maintenance has been passed in favour of wife, and the parties have started cohabiting even after one year of the passing of the maintenance decree, the wife has a ground for judicial separation.

·       Repudiation of marriage--- if the marriage of the women has been solemnized before her attaining the age of 15 years, the wife has the right to claim judicial separation on the attainment of age 15.

 

Filing petition for judicial separation

The spouse must have been married under ‘the Hindu marriage act, 1955,

Who has been hurt by the other party is entitled to file for the judicial separation at a district court under section Section 10 of Hindu marriage act, 1955.the following are the essentials required to be fulfilled for the same:

·       The marriage must be celebrated properly under Hindu

marriage act,1955.

·       Petitioner and respondent must live in same jurisdiction of court.

·       It is very imperative for the married couples to stay which each other for specific duration (atleast of 2 years in continuity) before filing for petition.

 

Effect of judicial separation

The spouse cannot remarry in the period of judicial separation, they are not bound to cohabit with each other, marital obligation and rights are not available to them.

If any of the spouse remarries, he or she will be guilty of bigamy.

In the event of one of the parties dying, the other party will inherit the property of the deceased spouse. (Narasimha Reddy and others v. M. Boosamma AIR1976 AP 77)

 

Difference between judicial separation and divorce

·       Judicial separation can be filed at any time after the marriage but in case of divorce, they can file petition after completion of one year of marriage.

·       Judicial separation provides or give release from marital duties and prevents each other to stay with each other while divorce diminish the marriage permanently.

·       Judicial separation is the first step phenomena whereas divorce is second step phenomena.

·       In judicial separation if the grounds are satisfied by the court, then it is granted but in case of divorce the reconcile the marriage first and then ordered for divorce.

·       Judicial separation can also consider the grounds of divorce.

·       Uder judicial separation the parties can think on their relationship and reconcile it but in divorce it is not possible they need to practice marriage rituals and paperwork again.

·       Judicial separation comes under the preview of divorce.

·       Judicial separation is defined under section 10 of Hindu marriage act 1955 and divorce is mentioned under section 13of this act.

 

Conclusion

Judicial separation is justifiable remedy for understanding the importance towards each other. Law gives them chance to rethink about the extension of their relationship while at the same the time guiding them to live separately.

According to society it is sometimes imperative to take thought on their marriage, but sometime it does not goes grate so, they choose to dissolve their marriage. It depends upon person’s, society’s, and individual’s perception.

According to me judicial separation it a great thing rather than   going or choosing for divorce.