1.

INTRODUCTION: -

It is said that no one can interfere between husband and wife, but
today law is in between them.

When marriage between two persons are solemnised, it is deemed

that it will long for ever according to Hindu law, but there are
various factors which affects the post marriage period such as,
difference of opinion, clashes, adultery, cruelty, desertion, forced
conversion of religion, etc., which oftenly lead to the separation
between husband and wife.

So, In this assignment various aspects related to judicial separation

are mentioned.
 2. Section 10 in The Hindu
Marriage Act, 1955

Judicial separation.

(1) 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 of the grounds specified in sub-
section (2) thereof, as grounds on which a petition for divorce
might have been presented.]

(2) 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 satisfied of the truth of
the statements made in such petition, rescind the decree if it
considers it just and reasonable to do so.
 3. Meaning of Judicial
Separation

Judicial separation is an instrument devised under law to afford some

time for introspection to both the parties to a troubled
marriage.Judicial separation is a sort of a last resort before the actual
legal break up of marriage i.e. divorce. The reason for the presence of
such a provision under Hindu Marriage Act is the anxiety of the
legislature that the tensions and wear and tear of everyday life and the
strain of living together do not result in abrupt break up of a marital
relationship. There is no effect of a decree for judicial separation on
the subsistence and continuance of the legal relationship of marriage
as such between the parties. The effect however is on their co-
habitation. Once a decree for judicial separation is passed, a husband
or a wife, whosoever has approached the court, is under no obligation
to live with his / her spouse.

There is a provision under the Indian Marriage Act to give some time
to both individuals to do some retro inspection if they are facing
troubles in their marriage. This is a legal instrument that is called
judicial separation. Judicial separation gives time to rethink about the
relationship. It allows both the husband and the wife to live separately
and give time to their strained relationship so that it heals with
passage of time. Husband and wife get some time to live alone and
think about their relationship. They can continue the marital
relationship if they decide to live as a husband and wife after the
expiry of this term that is described in the judicial separation. As such,
judicial separation is a feature (section 10) under the Indian Marriage
Act that gives the much-needed peace of mind, space, and
independence to both the husband and wife facing troubles in their
marriage.

4. the Legal Status AND GROUND

FOR Judicial Separation
Judicial separation is an attempt to save the institution of marriage, it
is not divorce. Divorce leads to the actual breakup of the man and the
woman in a marriage while judicial separation does not annul
marriage at all. It is a last-ditch attempt to save the marriage at any
cost. This instrument under Indian Marriage Act reflects the desire of
the lawmakers to prevent dissolution of this institution of our society.
Judicial separation allows the couple to rethink about their
relationship while living separately and also prevents them from
facing the strain of living together. The legal status of the man and the
woman does not change during the period of judicial separation and
they remain husband and wife.

Grounds upon which one can get

judicial separation

There are many grounds upon which judicial separation can be

ordered by a judge in a law court. These include cruelty, adultery,
desertion, forced conversion of religion, incurable diseases like
leprosy, insanity, venereal diseases that are communicable,
renunciation of the world by a spouse on religious grounds, either of
the spouse not alive and seen for more than seven years. If the
individual applying for judicial separation is wife, she has another
ground upon which she can do so. If there is proof that her husband
married another woman before her marriage and that woman is alive
while this petition is being presented, the woman can easily get
judicial separation from her husband. A woman can also apply for
judicial separation from her husband on grounds of rape, sodomy, and
bestiality. A girl who has been married to a man before the age of 18
can also apply for judicial separation.

If the person applying for judicial separation is the wife, then the
following grounds are also available to her:

1. Remarriage or earlier marriage of the husband but solemnised

before the commencement of Hindu Marriage Act, 1955,
provided the other wife is alive at the time of presentation of
petition for judicial separation by the petitioner wife.

2. Rape, sodomy or bestiality by the husband committed after the

solemnization of his marriage with the petitioner.
3. Non-resumption of co-habitation between the parties till at least
one year after an award of maintenance was made by any court
against the husband and in favour of the petitioner wife.

4. Solemnization of the petitioner wifes marriage with the

respondent husband before she had attained the age of 15 years
provided she had repudiated the marriage on attaining the age of
15 years but before attaining the age of 18 years.

It is on all the above grounds that judicial separation can be sought.

The first 9 grounds are available to both the husband and the wife
but the last four grounds are available only to the wife. It is to be
noted that it is on these grounds that divorce is also to be granted. It
has been held that unless a case for divorce is made out, the
question of granting judicial separation does not arise. Therefore,
the Courts while dealing with the applications for judicial
separation shall bear in mind the specific grounds raised for grant
of relief claimed and insist on strict proof to establish those
grounds and shall not grant some relief or the other as a matter of
course. Thus on a petition for divorce, the Court has discretion in
respect of the grounds for divorce other than those mentioned in
section 13 (1A) and also some other grounds to grant restricted
relief of judicial separation instead of divorce straightway if it is
just having regard to the facts and circumstances.
 Another question that arises is of decree of maintenance vis--vis
decree for judicial separation. Where a decree for judicial separation
was obtained by the husband against her wife who had deserted him,
the wife not being of unchaste character nor her conduct being
flagrantly vicious, the order of alimony made in favour of the wife
was not interfered with by the Court.

The Punjab and Haryana High Court has also held that a reading of
sec 24 and 26 (maintenance) does not show that if a petition under
section 9, 10 12 or 13 is disposed of, the jurisdiction of the court to
award maintenance pendent lite by an order to be passed is taken
away.

The above decisions go on to show that even where a decree for

judicial separation is passed in favour of the husband, maintenance
may still be awarded to a wife and judicial separation is no defence to
a claim for maintenance under Hindu Marriage Act.

Though section 10 of the Hindu Marriage Act does not provide any
time as to how long judicial separation can last. But section 13 of the
Act provides that if there is no resumption of co-habitation between
the parties one year after the decree for judicial separation is passed,
the parties can get a decree for divorce on this ground itself. But
divorce on this ground will be given only when one year has expired
after the passing of the decree for judicial separation and not earlier.
The reason for this is that one year is a long period and it provides
sufficient time to the parties for reconciliation or to arrive at a
decision. If the parties fail to overcome their differences within this
period, then there is no fun in allowing the legality of the marriage to
just linger on when in substance the relationship of marriage has long
expired.

It is to be noted, however, that if the parties do agree to resume co-

habitation any time after the passing of the decree for judicial
separation, they can get the decree rescinded by applying to the court.
The Act does not refer to any specific grounds on which a decree for
judicial separation can be annulled or rescinded. Section 10(2)
however, empowers the Court to rescind the decree for judicial
separation if it considers it just and reasonable to do so. However,
Courts have repeatedly warned that this power of rescission has to be
exercised with great circumspection and not in a hurry and only after
satisfying themselves that it would be just and reasonable to allow
such rescission.
 5. CRUELTY AS GROUND JUDICIAL
SEPARATION
Prior to the amendment made in Section 10 of the Hindu Marriage
Act, the concept of cruelty, as it was stated in the old Section 10 (I)
(b) was critically examined by the Supreme Court in Dastane v.
Dastane,1. It was therein observed that the enquiry in any case
covered by that provision had to be whether the conduct charged as
cruelty is of such a character as to cause in the mind of the petitioner a
reasonable apprehension that it will be harmful or injurious for the
petitioner to live with the respondent.

It was also pointed out that it was not necessary, as under the English
Law, that the cruelty must be of such a character as to cause danger to
life, limb or health or to give rise to the reasonable apprehension of
such a danger, though, of course its being harmful or Injurious to
health, reputation, working character or the like, would be an
important consideration in determining whether the conduct of the
respondent amounted to cruelty. What was required was that the
petitioner must prove that the respondent has treated the petitioner
with such cruelty as to cause reasonable apprehension in the mind of
the petitioner that it will be harmful or injurious for the petitioner to
live with the respondent.

1 A.I.R. 1975 SC 1534

Now after the amendment in Sections 10 and 13 made by the
Parliament in the year 1976, cruelty simpliciter has been made a
ground for judicial separation and for divorce without putting any
statutory rider. There is now no requirement of law that the party
seeking divorce on the ground of cruelty must prove that the
respondent had persistently and repeatedly treated the petitioner with
cruelty. Further, the petitioner has also not to prove that he/she was
treated with such cruelty as to cause a reasonable 3 apprehension in
his/her mind that it II be harmful or injurious to him/her to live with
the other party. Now the scheme appears to be to liberalise the
provisions relating to judicial separation and divorce. In the statement
of Objects and Reasons of the Marriage Laws (Amendment) Act,
1976 also, the object was stated to be so.

The following are some of the conducts which have been held to
constitute mental cruelty-demand of dowry by the husband's parents
with the support of the husband, wife abusing the husband and his
parents in foul language and picking up quarrels, heavy drunkenness
or addiction to drugs resulting in intemperate and violent behaviour
and acts tending to Injure the health, wife not coming to see her
husband in the hospital who was seriously injured husband having a
love affair with another woman and keeping her in the same house,
husband impotent qua his wife, wife stating that her husband may be
killed in an accident so that she may get insurance money constant
insults abuses and accusations of adulterous character which make
married life impossible.
The case of V. Bhagat v. D. Bhagat2 is an unusual case. The husband,
an Advocate practising in the Supreme Court and Delhi High Court,
sued for divorce on the ground that the wife, Vice- President of ITDC,
a Public-Sector Corporation, c is guilty of adulterous course of life.
The wife in her defence not only denied the allegations made against
her but attributed mental disequilibrium on the part of the husband by
saying that the husband suffers from mental hallucination, that he has
a morbid mind for which he needs expert psychiatric treatment, that
he is suffering from paranoid disorder and needs expert psychological
treatment and that he is mental patient and needs to be treated by a
psychiatrist.

Upon such stand taken by the wife in her written statement, the
husband amended his petition and added the ground of cruelty as well
for seeking divorce and prayed that a decree for divorce be granted to
him on the basis of the averments alone made by the wife in her
written statement/counter. According to him those allegations
amounted to cruelty against him and furnished adequate grounds for
passing a decree for divorce. During trial the Senior Advocate
appearing for the wife put several questions while cross-examining
the husband suggesting that the husband and the several members of
his family including grandfather are lunatics and that a streak of
insanity is running in the entire family. It may be mentioned that the
family of V. Bhagat and D. Bhagat was quite a well-off family. Both
2 1994 AIR 710, 1994 SCC (1) 337
husband and wife occupy high status in the society and also having
two issues who are doing well in life as the son is a doctor and the
daughter holding an MBA Degree is working with an American
company in California.

In this case the Supreme Court, in the interests of both parties and to
clear up an Insoluble mess, resorted to an unusual step by granting
divorce on the basis of pleadings and admitted material without
waiting for the full trial wherein the allegations and the counter
allegations could be proved or disproved. The Court found that the
allegations and the counter allegations were indicative of the intense
hatred and rancour between the parties and any reconciliation was out
of question. The averments made in the counter affidavit filed by the
wife and the questions put by her counsel in the cross examination of
the petitioner were found to constitute clear acts of cruelty. It was also
observed that in view of the said averments/questions no further
material was necessary to establish the said additional ground of
cruelty.
 6.CONCLUSION
To conclude, judicial separation is a decree from the court that
prohibits husband and wife to cohabitate and orders them to live
separately for a certain period. It does not dissolve the marriage of the
concerned couple. I think this provision helps a lot for settlement of
disputes. It gives a fair chance to the couple to rethink about their split
in marital bond. Law allows an opportunity to both the husband and
the wife to think about the continuance of their relationship while at
the same time directing them to live separate, thus allowing them the
much-needed space and independence to choose their path.

BIBLIOGRAPHY
 Book
Paras Diwan, Modern Hindu Law,23rd edition(2016),Allahabad law
agency

Websites: -

http://www.webindia123.com/law/family_law/hindu_law/judicial_separation.htm
https://indiankanoon.org/docfragment/198827109/?formInput=judicial
%20separation
http://www.lexology.com/library/detail.aspx?g=c0ac54fa-f2b6-4c44-aebd-
9cb07fc4bb08
http://pediaa.com/what-is-judicial-separation-in-india/

Acknowledgement
I would like to express my special thanks of gratitude to Asst.
Professor ANIL KUMAR MAURYA, who gave me the golden
opportunity to do this wonderful project on the topic, JUDICIAL
SEPERATION, which also helped me in doing a lot of Research and
I came to know about so many new things I am really thankful to
them.
Secondly I would also like to thank my parents and friends who
helped me a lot in finalizing this project within the limited time frame.

Table of content

1. INTRODUCTION
2. SECTION 10 IN THE HINDU MARRIAGE

ACT, 1955
3. MEANING OF JUDICIAL SEPARATION
4. THE LEGAL STATUS AND GROUND FOR JUDICIAL

SEPARATION
5. CRUELTY AS GROUND JUDICIAL SEPARATION
6. CONCLUSION
 List of cases

Dastane v. Dastane, A.I.R. 1975 SC 1534.

V. Bhagat v. D. Bhagat, 1994 AIR 710, 1994 SCC (1) 337.
 Abbreviations

A.I.R.- ALL INDIA REPORTER

S.C.- SUPREME COURT
VS.- VERSUS