Hindu Law (part 1)

Application of Hindu Law

Persons subject to Hindu Law-
Shastri Yagna Purushdasji v. Muldas Bhundardas Vaishya- It is extremely difficult, though
not impossible, to define the Hindu religion in the way the other religions are defined. It
embraces numerous views and ways of life.
The term Hindu is not to be found anywhere in the Dharmashastras. It is a foreign word. It is
derived from the word Sindhu. Sindhu is the name of a river in Indian sub-continent. The word
Sindhu was mis-spelled as Hindu by the Persians. The sub-continent came to be known as
Hindustan and its people as Hindus. Thus etymologically, the word Hindu does not signify a
religion; it refers to a territory or nation.
Hindu law is a personal law. So, Hindu law should define who is a Hindu, and upon whom the
Hindu law applies.

A portion of Hindu law has been codified by Parliament in four Acts-
i) The Hindu Marriage Act, 1955
ii) The Hindu Minority and Guardianship Act, 1955
iii) The Hindu Adoption and Maintenance Act, 1955
iv) The Succession Act, 1956
According to these Acts, a Hindu is a person who-
Is a Hindu by religion in any of its form or development
Is a Buddhist, Jain or Sikh by religion
Any person who domiciled in India, who is not a Muslim, Christian, Persi or Jew by
religion
Hindus domiciled in the territories to which the Act extends
Followers of Hindu law
Followers of Hindu Law-
i) Legitimate child of Hindu parents
ii) Illegitimate child of Hindu parents
iii) Children of one Hindu parent
iv) Converted- The law was that the conversion was not accepted. But later it was accepted but
the converted person was given the lowest caste. All Hindu laws will be applicable upon him
except the succession.
Requirement of conversion- (i) Unequivocal conduct, (ii) Bona fide intention, (iii) No ceremony
is required and (iv) His motive is not important (Raman Nadar v. Snehapoo).

Persons not subject to Hindu Law-
i) Non-Hindu child of one Hindu parent
ii) Converts from Hindu religion
Abraham v. Abraham- Those who convert to Islam and other castesare not subject to Hindu
Law.

Doctrine of factum valet-
It is a doctrine of Hindu law, which was originally enunciated by the author of the Dayabhaga,
and also recognized by the followers of the Mitakshara, that a fact cannot be altered by a
hundred texts. The text referred to are directory texts, as opposed to mandatory texts. The
maxim, therefore, means that if a fact is accomplished, i.e., if an act is done and finally
completed, although it may contravene a hundred directory texts, the fact will nevertheless stand,
and the act done will be deemed to be legal and binding.
This doctrine came from Roman maxim factum valet quod fieri non debuit which literally
means that what ought not to be done become valid when done.

Sources of Hindu Law
Founder of Mitakshara School Vijaneshwar said, sources are the means of knowing law.
Hindu law is based on tradition and analytical in nature. Law is part of Dharma. So the sources
of Dharma are the sources of Hindu law. But in a secular point of view- it is a man-made
institution of control.
Sources may be arranged in the following order-
i) Legislation
ii) Dharma Shastras
The Vedas
The Smritis
The Puranas
iii) Sadachar (Custom)
iv) Commentaries and Digests
v) Precedents
vi) Principles of justice, equity and good conscience.
These laws are applicable as long as they are consistent to the Constitution.
Krishna Sing v. Mathura Ahir- The ban which was upon the Sudras is abrogated, because it is
inconsistent with the Fundamental Rights of the Constitution.

i) Legislation-
Main legislations are-
The Caste Disabilities Removal Act, 1850
The Hindu Widow Remarriage Act, 1856
The Majority Act, 1875
Transfer of Property Act, 1882 (overrides the Hindu Law of Property).
The Disposition of Property Act, 1960
The Succession Act, 1956
The Child Marriage Restraint Act, 1929
The Special Marriage Act, 1954

ii) Dharmashastra-
The term Shastra came from shas which means to teach. Dharmashastra means teacher of
dharma. It has two meanings-
a) Comprehensive- it includes Vedas, Smritis and Puranas
b) Limited- It includes only Smritis.

Dharma is divided into six-
i) Barna Dharma It is Dharma of the castes. It provides the laws applicable to different
castes.
ii) Ashrama Dharma It means four stages of life: (a) Brahmacharya (b) Grihastha (c)
Banaprashta (d) Sanyas.
iii) Barnashrama Dharma It is the combination of the first two Dharmas.
iv) Guna Dharma It means inherent nature of a thing.
v) Nimitto Dharma It is the secondary Dharma in absence of primary Dharma.
vi) Sadharana Dharma which is proper Dharma for a person in ordinary situation.

Vedas- Synonym to Vedas is Shruti. Shru means to hear. Hindus believe that the Vedas
are heard from God and written. There are four Vedas- (a) Rig Veda (b) Yajur Veda (c)
Sham Veda (d) Atharva Veda.
Each Veda has three parts-
i) Sanhita
ii) Brahmin It describes what the duties are
iii) Upanishad It describes the consequence to perform a duty.

Smriti- Derived from Smri which means to remember. People remembered from the
words of the sages, it is not from the God directly.
Smriti is divided into 2 parts-
i) Dharma sutra- it is mainly prose
ii) Dharma Shastra- it is mainly poetry (sloka).
Exact number of Smritis is unknown. Some authentic Smritis are-
Manu, Vaisistha, Brihaspati, Yagnavalkya, Vyas, Kotilya, Parashar, Katyana.

There are 3 rules in every Smriti-
i) Achar Morality
ii) Vyavahar Rules that the king or judge used to apply insettling disputes in the
administration of justice.
iii) Prayaschit Penal provisions for commission of a wrong. There are both substantive and
procedural laws. I t has 2 elements- (a) An inner intention to reform oneself, (b) A readiness
for punishment for committing an offence.

I f there is conflict between 2 Smritis, there is difference in opinion. According to Brihaspati,
Manu is above all Smritis. According to some, one has to choose among to conflicting
Smritis. According to others, the more logical one will be accepted.

Purana- It is a book containing five matters-
i) Creation
ii) End of creation
iii) Dynasty
iv) Manavantar
v) History of ancient dynasties
There are 18 Puranas, 18 Upa-puranas and 18 Upapa Puranas.
If there is conflict between Purana and Smriti, Smriti shall prevail.

iii) Sadachar (Custom)-
Custom is one of the most important sources of Hindu Law. Where there is a conflict between a
custom and the text of the Smritis, such custom will override the text.
Collector of Madura v. Mootoo Ramalinga (Ramnads case) Clear proof of usage will
outweigh the written text of law.
Customs are divided into-
(a) Local customs- are confined to a particular locality like a district, town or village.
(b) Class customs are the customs of a caste or a sect of the community or the followers of a
particular profession or occupation.
(c) Family customs are confined to a particular family only, and do not apply to those who are
not members of such family.

Essentials of valid custom-
i) Ancientness A custom must be minimum 100 years old.
ii) Certainty - Universality in observance is absolutely necessary.
iii) Reasonableness It should be in accordance with rules of justice, equity and good
conscience.
iv) Continuity It must be continuous without interruption.
v) Public policy It must not be against public policy.
vi) Uniformity It must be uniformly performed.
If a custom meets the abovementioned requirements, it becomes binding.

iv) Commentary and Digests-
Commentary is the interpretation of the Smritis by the scholars. It also includes the customs and
usages which the commentators found prevailing around them. Despite the fact such
commentators have modified the original texts in order to bring them in line with the local
customs and conditions, the commentaries are now considered to be more authoritative than the
original texts themselves.
Collector of Madura v. Moottoo Ramalinga- Clear proof of usage will outweigh the written
text of the law.
These commentaries gave rise to different schools known as the Mitakshara and Dayabhaga.
Collection of commentaries is called Digests.
Features of commentary and digest-
i) They have tried to make the subject simple and easy to understand.
ii) We find quotations of several works (texts)
iii) Topics of Dharma have been widely classified by the digest
iv) They have included custom and usages prevailing during their time
v) Commentary and digests kept law abreast of life.
A lot of commentaries have been made on Manusmriti. These are called Manu Tika.
Commentaries were started to be written down from 4-5 century and digests were from 12
century.
Authority of commentary and digest-
Atmaram v. Bajirao If Commentary and digest conflict with Smriti or Purana, Commentary
and digest shall prevail.

v) Precedent
vi) Principles of J ustice, Equity and Good conscience

Schools of Hindu Law
School means rules and principles of Hindu Law which are divided into opinion. It is not
codified. There are two Schools of Hindu Law- (a) Mitakshara (b) Dayabhaga.
Mitakshara School prevails throughout India except in Bengal. It is a running commentary on the
code of Yagnavalkya. Mitakshara is an orthodox School whereas the Dayabhaga is Reformist
School.
The Mitakshara and Dayabhaga Schools differed on important issues as regards the rules of
inheritance. However, this branch of the law is now codified by the Hindu Succession Act, 1956,
which has dissolved the differences between the two. Today, the main difference between them
is on joint family system.
Mitakshara- Rights in the joint family property is acquired by birth, and as a rule, females have
no right of succession to the family property. The right to property passes by survivorship to the
other male members of the family.
Dayabhaga- Rights in the joint family property are acquired by inheritance or by will, and the
share of a deceased male member goes to his widow in default of a closed heir.

Differences between the two Schools in Coparcenary-
Mitakshara Dayabhaga
i) Right of a son by birth in the ancestral
property equal to the interest of his father.
i) A son is entitled to his ancestral property
only on the death of his father. The father is
the absolute owner of his property in his
lifetime.
ii) A son becomes coparcener right after his
birth. His right is applicable to the property
of his grandfather and grand-grandfather.
ii) A son becomes coparcener by death of his
father. This right is not available within the
property of his father, grandfather or grand-
grandfather.
iii) Everyone is entitled to the property as a
unit. Their shares are not defined. They have
only the commodity of ownership. There is
joint-tenancy.
iii) Everyones share is defined. There is
tenancy-in-common.
iv) One cannot transfer his share to the third
party.
iv) One can transfer his share.
v) The joint-property can be partitioned. In
that case, it will be partitioned as it was in
case of the father.
v) As the shares are defined, one can easily
partition with his share.

Differences between the two Schools in Succession-
Mitakshara- Property of a deceased Hindu is partitioned into two ways as the property is of two
types- (a) Ancestors property, (b) Separate property.
Ancestors property is partitioned in accordance to the Rules of Survivorship. But a Separate
property is partitioned to the descendants.
Dayabhaga- Property is of two types- (a) Joint, (b) Separate. The descendants inherits the
property whatever type it is.

Mitakshara- In default of close heir, brother and immediate survivors inherit, the wife does not
inherit.
Dayabhaga- If coparcener dies, his widow will get the property in default of a close heir but she
cannot alienate.

Mitakshara- The order of heirs is decided by mereness of blood.
Dayabhaga- The order of heirs is decided by the competence to offer Pinda and Sraddho to the
deceased.
Effect of migration
A person follows the school of his area. But if he migrates to another place, he will follow the
School of that locality. This has been decided in various cases-
Gope v. Manjura Govalin- The burden of proving migration lies on him who pleads it. The
original place of a family can be inferred from the chief characteristics of that family.
Keshavarao v. Swadeshrao, 1938- Migration means leaving to another place forever. But if a
place is divided into two administrative area, that will not be regarded as migration.
Moolchand v. Mrs. Amrita Bai- A person migrates will all of his personal laws. Personal law
unlike local law moves with whom he covers.
Notraz v. Subba Raya- A person can be given an option to give up the law of the old place and
adopt the new one.


Hindu Marriage
Hindu marriage is a religious sacrament. Unlike Islami law, it is not contract. Hindu philosophers
treated Hindu marriage as a part of Achar (custom) but not a part of law (vyavahar). It is an act
by performance of which a thing becomes fit for a certain purpose. These purposes are-
i) Performance of sacrifice
ii) Pleasure and procreation of children (Children save their fathers from hell-fire)
Marriage is compulsory for all Hindus except for lifetime students.

Forms of marriage-
There are 8 forms of marriage, 4 of them are approved and 4 of them are not approved.
Approved forms are-
Brahma, Daiva, Arsha, Prajapatya.
Unapproved forms are-
Gandharva, Asura, Rakshas, Paishacha
Only 2 forms are available now- Brahma and Asura. Brahma form is approved by law.
I n Brahma form- Bride is a gift to the bridegroom and there is no consideration.
I n Asura form- The husband is giving an amount to father of the bride. It is called Shulka. It is
called sale of the daughter by money.

Caste and marriage-
To marry in the same caste was not approved; because a Hindu believed that people of the same
caste are Agnate (Agnate means where there is no female intervention, i.e. Uncle etc.) Marrying
daughter of Agnate was not allowed. Females of same caste were considered to be the daughters
of Agnates.
Unapproved marriages are of two types-
i) Anulom Marriage between male of a higher caste and female of a lower caste. It is valid.
ii) Protilom Marriage between male of a lower caste and female of a higher caste. It is invalid.

Swapinda relationship and marriage-
It is prohibited. It may arise in both Agnate and Cognate relations.
Mitakshara- Marriage is not allowed in blood relations.
Dayabhaga- Marriage is not allowed among those who can offer Pindas.
But if someone marries in Swapinda, it will be considered valid.

Guardianship in marriage-
It is necessary to have guardians in a Hindu marriage.
List of guardians-
Mitakshara school-
i) Father
ii) Paternal grandfather
iii) Brother
iv) Other paternal relation of bride in order of proximity (uncle, cousin)
v) Mother
Dayabhaga school-
i) Father
ii) Paternal grandfather
iii) Brother
iv) Other paternal relation of bride in order of proximity (uncle, cousin)
v) Mother
vi) Maternal grandfather
vii) Maternal uncle
viii) Mother

Polygamy is allowed in Hindu law but Polyandry (polygamy in which a woman has more than
one husband) is not allowed. Some states of India prohibit polygamy.
Marriage is indissoluble. Divorce is not allowed at all.
I n widow remarriage there is conflict-
According to Manu- It is not allowed because 2nd husband of a pious lady is not to be found
anywhere.
But a woman can remarry in five situations-
i) Husband is unheard of
ii) Husband is deaf
iii) Husband becomes ascetic (Nastik)
iv) Impotent
v) Out caste
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What is the difference between Divorce and Judicial Separation?
Divorce vs Judicial Separation
A Decree Absolute of Divorce brings a marriage to an end and Judicial Separation does
not. However, it is more than a husband and wife living apart. A Decree of Judicial Separation can
be sought on of the five facts which are available for divorce but it is not necessary to prove that the
marriage has irretrievably broken down.
In Divorce there are two Decrees; Decree Nisi and Decree Absolute. In Judicial Separation there is
one Decree pronouncing Judicial Separation. The parties remain married and are therefore not able
to remarry. The Court is able to make the range of financial order which are available on Divorce
save for Pension Sharing or Pension Attachment Orders. The Decree of Judicial Separation has
the same effect as a Decree Absolute of Divorce upon a Will. The spouse can no longer take any
benefit under the Will unless there is a new Will specifically stating they are to do so.
Petitions for Judicial Separation are very rare but there may be reasons for a party seeking this
rather than a Divorce such as one or both of them having religious beliefs or the parties not having
been married for the requisite one year required for a Divorce.
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Hindu Marriage Act 1955
The following is a summary of the Hindu Marriage Act 1955, which aims to allow a
reader to understand the key points within the Act without having to read the Act itself.
Introduction
India, being a cosmopolitan country, allows each citizen to be governed
under personal laws relevant to religious views. This extends to personal laws inter
alia in the matter of marriage and divorce.
As part of the Hindu Code Bill, the Hindu Marriage Act was enacted by Parliament in
1955 to amend and to codify marriage law between Hindus. As well as regulating the
institution of marriage (including validity of marriage and conditions for invalidity), i t
also regulates other aspects of personal life among Hindusand the applicabilityof such
lives in wider Indian society.
The Hindu Marriage Act provides guidance for Hindus to be in a systematic
marriage bond. It gives meaning to marriage, cohabiting rights for both the bride
and groom, and a safety for their family and children so that they do not suffer from
their parental issues.
Applicability
The Act applies to all forms of Hinduism (for example, to a person who is a Virashaiva,
a Lingayat or a follower of the Brahmo, Prarthana or AryaSamam) and also recognises
offshoots of the Hindu religion as specified in Article 44 of the Indian Constitution.
Notably, these include Jains and Buddhists. The Act also applies to anyone who is a
permanent resident in the India who is not Muslim, Jew, Christian, or Parsi by religion.
Although the Act originally applied to Sikhs as well, the AnandKarj Marriage Act gives
Sikhs their own personal law related to marriage.
Although the Act originally did not apply to citizens in the State of Jammu and
Kashmir, the effect of the J&K Hindu Marriage Act, 1955 made it applicable.
Conditions for marriage
Section 5 of The Hindu Marriage Act specifies that conditions must be met for a
marriage to be able to take place. If a ceremony takes place, but the conditions are
not met, the marriage is either void by default, or voidable.
Void marriages
A marriage may be declared void if it contravenes any of the following:
1. Either party is under age.The bridegroom should be of 21 years of age and the bride of 18 years.
2. Either party is not of a Hindu religion.Both the bridegroom and the bride should be of the Hindu
religion at the time of marriage.
3. Either party is already married. The Act expressively prohibits polygamy. A marriage can only be
solemnized if neither party has a living spouse at the time of marriage.
4. The parties are sapindas or within the degree of prohibited relationship.
Voidable marriages
A marriage may later be voidable (annulled) if it contravenes any of the following:
1. Either party is impotent, unable to consummate the marriage, or otherwise unfit for the
procreation of children.
2. One party did not willingly consent. In order to consent, both parties must be sound of mind and
capable of understanding the implications of marriage. If either party suffers from a
mental disorder or recurrent attacks of insanity or epilepsy, then that may indicate that consent
was not (or could not be) given. Likewise, if consent was forced or obtained fraudulently, then the
marriage may be voidable.
3. The bride was pregnant by another man other then the bridegroom at the time of the marriage.
Ceremonies
Section 7 of the Hindu Marriage Act recognises that there may be different, but equally
valid ceremonies and customs of marriage. As such, Hindu marriage may be
solemnized in accordance with the customary rites and ceremonies of either the bride
or the groom. These rites and ceremonies include the Saptapadi and Kreva.
Registering a marriage
A marriage cannot be registered unless the following conditions are fulfilled:
1. a ceremony of marriage has been performed; and
2. the parties have been living together as husband and wife
Additionally,the parties must have been residing within the district of the Marriage
Officer for a period of not less than thirty days immediately preceding the date on
which the application is made to him for registration.
Section 8 of the Hindu Marriage Act allowsastate government to make rules for the
registration of Hindu marriages particular to that state, particularly with respect to
recording the particulars of marriage as may be prescribed in the Hindu Marriage
Register.
Registration provides written evidenceof marriage. As such, the Hindu Marriage
Register should be open for inspection at all reasonable times (allowing anyone to
obtain proof of marriage) and should be admissible as evidence in a court of law.
Divorce
Although marriage is held to be divine, the Hindu Marriage Act does permit either
party to divorce on the grounds of unhappiness, or if he or she can prove that the
marriage is no longer tenable.
A petition for divorce usually can only be filed one year after registration. However, in
certain cases of suffering by the petitioner or mental instability of the respondent, a
court may allow a petition to be presented beforeone year.
Grounds for divorce
A marriage may be dissolved by a court order on the following grounds:
1. Adultery - the respondent has had voluntary sexual intercourse with a man or a woman other
than the spouse after the marriage.
2. Cruelty - the respondent has physically or mentally abused the petitioner.
3. Desertion - the respondent has deserted the petitioner for a continuous period of not less than
two years.
4. Conversion to another religion - the respondent has ceased to be a Hindu and has taken
another religion.
5. Unsound mind - the respondent has been diagnosed since the marriage ceremony as being
unsound of mind to such an extent that normal married life is not possible.
6. Disease - the respondent been diagnosed with an incurable form of leprosy or has venereal
disease in acommunicable form.
7. Presumption of death - the respondent has not been seen alive for seven years or more.
8. No resumption of cohabitation after a decree of judicial separation for a period of at least
one year.
In addition, a wife may also seek a divorce on the grounds that:
1. In case of marriagesthat took place before the Hindu Marriage Act 1955 was enacted, the
husband was already marriedand that any other wife of thehusband was alive at the time of the
marriage ceremony.
2. The husband, after marriage, has been found guilty of rape, sodomy or bestiality.
3. Co-habitation has not been resumed within a yearafter an order for maintenance under Section
125 of the Criminal Procedure Code or alternatively, under the Hindu Adoptions & Maintenance
Act 1956.
4. The wife was under-age when she married and she repudiates the marriage before attaining
the age of 18 years.
Alimonies (permanent maintenance)
At the time of the decree of divorce or at any subsequent time, the court may decide
that one party should pay to the other an amount for maintenance and support. This
could be a one off payment, or a periodical (such as monthly) payment. The amount to
be paid is at the discretion of the court.
Remarriage
Remarriage is possible once a marriage has been dissolved by a decree of divorce
and no longer able to be appealed (whether there was no right of appeal in the first
place, or whether the time for appealing has expired, or whether an appeal has been
presented but dismissed).
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SECTION 10 HINDU MARRIAGE ACT
Judicial separation is an instrument devised under law to afford some time for
introspection to both the parties to a troubled marriage. 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.
Judicial Separation and Divorce in India as perHindu Marriage Act
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 every
day 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 .
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.
Hence, judicial separation can be had on any of the following grounds:
1. Adultery
2. Cruelty
3. Desertion
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
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 forjudicial 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.
ILR (1964) 2 Punj 732.
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.
AIR 1981 Punj 305 ; 1981 Hindu LR 345
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.