A judicial separation is a legal process by which a married couple is formally separated, despite being legally married. It is often known has divorce from bed and board. The separation is granted in the form of a court order. Do note, however, that a separation is not granted for any reason – eg. the couple’s
The provision for judicial separation is contained in section 10 of the Hindu Marriage Act, 1955. The section reads as under:
A decree for judicial separation can be sought on all those ground on which decree for dissolution of marriage, i.e. divorce can be sought.
Judicial separation can be had on any of the following Cases
1. Adultery: Adultery is voluntary sexual intercourse between two persons who are not legally married to each other and one of whom is married to another person. Thus, adultery can be committed by the husband with any woman whether married or not, or by the wife with any man, whether married or not.
2. Cruelty: Cruelty may be defined as a conduct of such character as to have caused danger to life, limb or health (bodily or mental), or as to give reasonable apprehension of such danger. In order to establish a case of cruelty against a husband, the wife must prove more than just isolated acts of violence.
3. Desertion: The cessation of cohabitation brought about by the act of the deserting spouse could be a cause for judicial separation.
4. Apostacy (Conversion of religion)
5. Insanity
6. Virulent and incurable form of leprosy
7. Venereal disease in a communicable form
8. Renunciation of world by entering any religious order
9. Has not been heard of as being alive for seven years
Section 10 of Hindu Marriage Act provides for judicial separation. It provides that either party to a marriage can file a petition before the Court for such a relief on any of the following grounds:
(i) that the other party has had voluntary sexual intercourse with any person other than his or her spouse after solemnisation of marriage;
(ii) that the other party has, after solemnisation of the marriage, treated the spouse with cruelty;
(iii) that the other party has deserted the spouse for a continuous period of not less than 2 years immediately preceding the presentation of the petition;
(iv) that the other party has ceased to be a Hindu by conversion to another religion;
(v) that the other party has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the other party;
(vi) that the other party has been suffering from a virulent and incurable form of leprosy;
(vii) that the other party has been suffering from venereal disease in a communicable form; or
(viii) the other party has renounced the world by entering any religious order; or
(ix) 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 him/her, had the party been alive;
In case of wife, she is entitled to the aforesaid relief of judicial separation on following two additional grounds also:
(a) that the husband has, since the solemnisation of marriage, been guilty of rape, sodomy or bestiality;
(b) that a decree or order has been passed against the husband awarding maintenance to the wife under section 18 of Hindu Adoptions and Maintenance Act, 1956 or in proceeding under section 125 Cr.P.C and since the passing of the decree or order, cohabitation between the parties has not been resumed for one year or upwards;
(c) that her marriage was solemnized before she attained the age of 15 years and she has repudiated the marriage after attaining that age but before attaining the age of 18 years.
Even though either party to the marriage seeks decree of divorce, the Court may pass a decree for judicial separation and not a decree of divorce, if the Court considers it just so to do having regard to circumstances of the case.
No Alternative Relief
It may be mentioned that when decree of divorce is sought on the grounds mentioned in clauses (ii), (vi) and (vii) of sub-section (1) of section 13 instead of decree of divorce, decree for judicial separation cannot be passed. Clause (ii) provides for decree of divorce when other party has ceased to be a Hindu by conversion to another religion. Clause (vi) provides for decree of divorce when other party has renounced the world by entering 'any religious order. Clause (vii) provides for decree of divorce on the ground that the other party has not been heard of as being alive for a period of 7 years or more by those persons who would naturally have heard of him/her, had the party been alive.
