What are the grounds for judicial separation under the Hindu Marriage Act ?
Ans. Judicial separation.—Section 10 of the Hindu Marriage Act deals with judicial separation. Under the Textual Hindu Law there was no scope either for judicial separation or for divorce. Nowhere these two terms have been introduced except in recent enactments. It was pious duty of the husband to keep the wife under his roof and maintain her. She was shown as better half(Ardhangini). Without the wife husband was not complete. He alone could not perform any religious ceremony. Wives were to be honoured and respected by the husbands as they were known Grihlakshmi (wealth of the house). But our recent enactments have prescribed provisions under certain specified circumstances for judicial separation and divorce. Section 10 of the Marriage Act deals with topic of judicial separation. Section 10 (1) provides that either party to a marriage may present a petition to District Court praying for a decree for 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. Setion 10 (2) of the act lays down, “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.” Now, under the Marriage Laws (Amendment) Act, 1976, the grounds for divorce and judicial separation are virtually the same. Whatever the grounds of divorce under the amended section 13(1) and 13(2) of the Amendment Act, 1976 have been laid down, they have been similarly
adopted in Section 10.Thus under Section 10 now the grounds for judicial separation are : (i) 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; (ii) Cruelty: Where the other party has treated the petitioner with cruelty; or (iii) 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 or marriage; (iv) Unsound mind : Where 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 respondent. `Mental disorder’ in the above context means mental illness, incomplete development of mind, psychopathic disorder and schizophrenia. The word ‘psychopathic disorder’ means persistent disorder or disability of mind including sub-normality of mind resulting in abnormally aggressive or seriously irresponsible conducts. (v) Conversion: Where the other party has ceased to be a Hindu by conversion to another religion; (vi) Leprosy: Where the other party has been suffering from a virulent and an incurable form of leprosy; (vii) Venereal disease: Where the other party has been suffering from venereal disease in communicable form; (viii)Missing Spouse.—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 him had that party been alive; (ix) Renunciation of world.—Where the other party has renounced the world by entering any religious order. In case of wife she would be entitled to a decree of judicial separation on following additional grounds :—(i) Bigamy: In case of any marriage solemnized before the commencement of this Act where the husband has married again before the commencement of this Act or the other wife was alive at the time of solemnisation of the marriage, or (ii) Rape, Sodomy or Bestiality : Where the husband has, since the solemnisation of the marriage, been guilty of rape, sodomy or bestiality,
Or
(iii) Decree or order awarding maintenance: Where a decree has been passed against the husband awarding maintenance to wife and cohabitation has not resumed for a period of one year, or (iv) Repudiation of the marriage: Where her marriage was solemnised before she attained the age of fifteen years and she has repudiated the marriage before that age but before attaining the age of eighteen years. Section 10 sub-clause (2) provides that it shall no longer be obligatory for the petitioner to cohabit with the respondent where decree for judicial separation has been passed. 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 position, rescind the decree if it considers it just and reasonable to do so. Effect of Decree.—A decree of judicial separation does not snap the legal bond of marriage between the parties. However, it gives a legal license to the petitioner to live separate from the respondent and the latter can no more insist that the former cohabit with him or her as the case may be Matter relating to the spouses and children may be decided by the court while deciding on a petition for judicial separation and even earlier while the petition is pending for disposal. If the cohabitation has not been resumed for one year or more following a decree of judicial separation it is a ground for divorce available to either party. By implication of Section 10(2) it appears that in the absence of a decree for judicial separation it is legally obligatory for the parties to cohabit with one another.