JUDICIAL SEPARATION

SUBMITTED BY: SUBMITTED TO:

Deepak Goyal- 1722 Ms. Pooja Srivastva

Deeptangshu Kar- 1723 Faculty, Family Law-1

Diksha Singh- 1724

Dipali Singh- 1725

B.A.LL.B (Hons.)

Research submission submitted in fulfillment for the course FAMILY LAW-1 for
obtaining the degree of B.A.LL.B. (Hons.)

September, 2018

CHANAKYA NATIONAL LAW UNIVERSITY,

NYAYA NAGAR, MITHAPUR, PATNA, BIHAR (800001)

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 DECLARATION BY THE CANDIDATE

I hereby declare that the work reported in the B.A.LL.B (Hons.) Project Report entitled
“JUDICIAL SEPARATION” submitted at Chanakya National Law University is an authentic
record of my work carried out under the supervision of Ms. POOJA SRIVASTAVA I have not
submitted this work elsewhere for any other degree or diploma. I am fully responsible for the
contents of my Project Report.

SIGNATURE OF CANDIDATES

NAME OF CANDIDATES:

 DEEPAK GOYAL
 DEEPTANGSHU KAR
 DIKSHA SINGH
 DIPALI SINGH

CHANAKYA NATIONAL LAW UNIVERSITY, PATNA.

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ACKNOWLEDGEMENT

I would like to thank my faculty Ms. POOJA SRIVASTAVA whose guidance helped me a lot
with structuring my project.

I owe the present accomplishment of my project to my friends, who helped me immensely with
materials throughout the project and without whom I couldn’t have completed it in the present
way.

I would also like to extend my gratitude to my parents and all those unseen hands that helped me
out at every stage of my project.

THANK YOU,

NAME: Deepak Goyal, Deeptangshu Kar, Diksha Singh, Dipali

COURSE: B.A.LL.B (Hons.)

ROLL NO: 1722, 1723, 1724, 1725

SEMESTER: 3RD

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CONTENT

ACKNOWLEDGEMENT ............................................................................................................ 2
CONTENT ..................................................................................................................................... 3
1. INTRODUCTION ................................................................................................................. 4
1. JUDICIAL SEPARATION ................................................................................................... 6
2. ADULTERY ........................................................................................................................... 7
3. CRUELTY.............................................................................................................................. 9
4. DESERTION........................................................................................................................ 15
5. CONVERSION .................................................................................................................... 17
6. UNSOUNDNESS OF MIND ............................................................................................... 18
7. LEPROSY ............................................................................................................................ 20
8. VENEREAL DISEASE ....................................................................................................... 22
9. RENUNCIATION OF THE WORLD ............................................................................... 24
10. PRESUMPTION OF DEATH ............................................................................................ 26
11. ADDITIONAL GROUNDS FOR WIFE- SECTION 13(2) ............................................. 27
12. COURT’S POWER TO RESCIND THE DECREE ........................................................ 29
13. CONCLUSION .................................................................................................................... 32

BIBLIOGRAPHY

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 1. INTRODUCTION

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 solemnization of marriage

(ii) that the other party has, after solemnization 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
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

(viii) the other party has renounced the world by entering any religious order

(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 solemnization 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

4
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.

AIMS AND OBJECTIVES.

 To find out the concept of Judicial Separation.

 To find out the grounds for Judicial Separation.
 To find out the meaning of Unsoundness of mind as a ground for the passing of the
decree.
 To find out the Court`s power in rescinding the decree.

HYPOTHESIS.

1. The researcher presumes that unsoundness of mind is a ground for passing of the decree
of Judicial Separation.
2. The researcher presumes that in the case of wife, there are additional grounds for the
passing of the decree of Judicial Separation.
3. The researcher on close examination believes that judicial separation is different from
divorce.
4. The researcher believes that Judicial Separation might lead to reconciliation between the
parties.

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 1. JUDICIAL SEPARATION

Some married couples never get as far as divorce, but are happy to stay apart. Judicial separation
is a state of marriage authorized by the court where a husband and wife do not live like a married
couple. In many situations it becomes impossible for either spouse to live with the other person.
At the same time, they either do not want a divorce or do not have enough ground for divorce.
Legal separation (sometimes “judicial separation”, “separate maintenance”, is a legal process by
which a married couple may formalize a de facto separation while remaining legally married. A
legal separation is granted in the form of a court’s order, which can be in the form of a legally-
binding consent decree. In such a situation, court may grant a decree of judicial separation.1

Section 10 of the Hindu Marriage Act, 1955:

(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
(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.
Grounds for Judicial separation are same as given in section 13(1), which are applicable for
divorce. A wife has the grounds given in section 13(2) as well. These are given below under
Divorce.

1
Judicial separation, https://www.webindia123.com/law/family_law/hindu_law/judicial_separation.html
2
S.10 of Hindu Marriage Act, 1955

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 2. ADULTERY

Where either party to marriage willfully had sexual intercourse with another person after
marriage, the other party to marriage could obtain the decree of judicial separation
Even a solitary proof of extra-marital intercourse is sufficient for getting a decree of judicial
separation. There can be circumstantial evidence but it should be such that it might rule out the
possibility of his innocence. Pre-marital illicit intercourse cannot be a ground to the relief of
judicial separation.3

It is not necessary to establish cohabitation by direct evidence as it is very rare in such cases. The
evidence may be circumstantial and should be such as to rebut the presumption of innocence in
favour of the party against whom the charge is levelled. If any eye-witness thereto is produced,
there is very little chance of his credibility. The general rule is that the circumstantial evidence
should be such which might appear reasonable to a man of common prudence.

In Suvrai v. Saraswathi,4 the court held that in most cases the evidence is circumstantial and the
circumstances under which the act is alleged to have been done must be determinative and in
every probability must lead to a conclusion of illicit cohabitation. If a stranger to the family is
found in the bedroom of wife at mid-night in absence of an acceptable explanation, it would
normally be concluded that illicit intercourse must have taken effect.

But if the wife is found moving on a scooter with a stranger or talking with him in lonely places,
adulterous relations cannot be inferred particularly in modern social context when moral values
are changing at a rapid pace. Similarly, presence of the wife and the respondent holding her
breasts in his hands by itself cannot permit any inference of adultery.

In Veena Kalia v. Jatinder Nath Kalia5, the husband after marriage went abroad for studies
leaving his two minor daughters and his wife in India. He did not try to take his wife with him

3
Koundal, Akshay, what are the grounds of judicial separation under hindu law,
http://www.shareyouressays.com/knowledge/what-are-the-main-grounds-of-judicial-separation-under-hindu-
law/117846
4
AIR 1952 Mad 193
5
AIR 1996 Del 54

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and left her. For twenty-three years, they lived apart and the husband contracted a second
marriage there. He had three children out of the second marriage. He was thus, guilty of cruelty,
desertion and adultery. The wife got divorce on these grounds and the husband was ordered to
pay her maintenance of Rs. 10,000 per month. The court also ordered him to deposit Rs. 10 lacs
in the court towards the expenses of his daughters’ marriages.

Burden of proof is on the petitioner. Earlier it had to be proved beyond doubt but now only high
probability is required.

Proof of adultery by direct evidence is rare and it would be unreasonable to expect direct
evidence of adultery. Moreover, the nature of this act is such that direct evidence is not possible.
Courts therefore expect circumstantial evidence and circumstantial evidence is sufficient.

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 3. CRUELTY

The expression cruelty has not been defined in the Act but the judicial decisions have made it
distinct that cruelty in the legal sense not necessarily be physical violence. A course of conduct
or treatment which tends to undermine the health of the spouse on that account or affects the
reasonable happiness of the life and ill-treatment both physical and mental would constitute
cruelty. There is mental as well as physical cruelty. Motive or intention to be cruel is not
necessary if conduct otherwise can be held to be cruel.

2. The phenomenon of domestic violence is widely prevalent but has remained largely invisible
in the public domain. Presently, where a woman is subjected to cruelty by her husband or his
relatives, it is an offence under Section 498-A of the Indian Penal Code. The civil law does not
however, address this phenomenon in its entirety.

3. It is, therefore, proposed to enact a law keeping in view the rights guaranteed under Articles
14, 15 and 21 of the Constitution to provide for a remedy under the civil law which is intended to
protect the woman from being victim of domestic violence and to prevent the occurrence of
domestic violence in the society.6

4. The Bill, inter alia, seeks to provide for the following—

(i) It covers those women who are or have been in a relationship with the abuser where both
parties have lived together in a shared household and are related by consanguinity, marriage or
through a relationship in the nature of marriage or adoption. In addition, relationships with
family members living together as a joint family are also included. Even those women who are
sisters, widows, mothers, single woman, or living with the abuser are entitled to legal protection
under the proposed legislation.7

However, whereas the Bill enables the wife or the female living in a relationship in the nature of
marriage to file a complaint under the proposed enactment against any relative of the husband or

6
Gadhre, Crulety as a ground for divorce http://www.legalservicesindia.com/article/1900/cruelty-as-a-ground-for-
divorce.html
7
Id.

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the male partner, it does not enable any female relative of the husband or the male partner to file
a complaint against the wife or the female partner.

(ii) It defines the expression “domestic violence” to include actual abuse or threat or abuse that is
physical, sexual, verbal, emotional or economic. Harassment by way of unlawful dowry demands
to the woman or her relatives would also be covered under this definition.

(iii) It provides for the rights of women to secure housing. It also provides for the right of a
woman to reside in her matrimonial home or shared household, whether or not she has any title
or rights in such home or household. This right is secured by a residence order, which is passed
by the Magistrate.

(iv) It empowers the Magistrate to pass protection orders in favour of the aggrieved person to
prevent the respondent from aiding or committing an act of domestic violence or any other
specified act, entering a workplace or any other place frequented by the aggrieved person,
attempting to communicate with her, isolating any assets used by both the parties and causing
violence to the aggrieved person, her relatives or others who provide her assistance from the
domestic violence.8

(v) It provides for appointment of Protection Officers and registration of non-governmental

organizations as service providers for providing assistance to the aggrieved person with respect
to her medical examination, obtaining legal aid, safe shelter, etc.9

In England, the House of Lords observed that cruelty in the matrimonial law implies legal
cruelty, which means not only actual physical assault but also a reasonable apprehension of
danger to life, limb, health and happiness. As held in Russel v. Russel,10 “cruelty which is a
ground for dissolution of marriage may be defined as wilful and injustifiable conduct of such a
character, as to cause danger to life, limb or health, bodily or mental or as to give rise to a
reasonable apprehension of such a danger”. The false imputation made by the husband against

8
Sajid sheikh cruelty as a ground for divorce https://lawlex.org/lex-pedia/mental-cruelty-as-a-ground-for-divorce-
under-hindu-marriage-act-1955/1775
9
Id.
10
1897 A.C. 395

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his wife that she is living an adulterous life amounts to such cruelty as to cause reasonable
apprehension in her mind that it would be harmful or injurious for her to live with the husband.

Different kinds of cruelty justifying judicial separation can be classified under the following
heads:

(i) Actual or Threatened Physical Injury:

Physical injury will necessarily constitute a violence of certain degree and such degree of
violence sufficient to constitute legal cruelty will vary with the status of parties in each case.
Where bodily injury is inflicted or there is reasonable apprehension of danger to life, limb or
health, bodily or mental, it is easy to conclude that cruelty has taken place. One or two acts of
beating inflicted by the husband on the wife are sufficient to constitute cruelty.

In Prarnati Chatterjee v. Gautam Chatterjee, the Calcutta High Court observed that the wife left
matrimonial home after two years of marriage and was not willing to come back. Wife was
having separate source of income and interested in looking after father’s business making false
allegation against husband before police and his employer and also deprived him from
cohabitation. Therefore, husband is entitled to decree of divorce as wife had failed to prove the
allegation of physical cruelty against husband.

(ii) Verbal Abuse or Insults:

The continual use of abusive mid insulting words spitefully indulged in to bring shame and
mental agony to the other spouse which will tend to undermine the health of that spouse may in
the circumstances of any particular case amount to legal cruelty. Where the wife used foul and
abusive language to the husband and his parents and generally picked up quarrels tending to
disturb husband’s mental peace, it was held to amount to cruelty.

Insulting conduct indulged in by the wife in public against her husband would cause mental
agony and pain and therefore, it would amount to cruelty.

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(iii) Excessive Sexual Intercourse:

Sex plays an important role in marital life and cannot be separated from other factors which lend
to matrimony a sense of fruition and fulfilment. But demand of excessive sexual intercourse and
compelling the other partner to submit to it against one’s wishes and despite one’s remonstrance,
resulting in the impairment of other’s health will amount to cruelty.

(iv) Refusal of Intercourse:

Where sexual intercourse is unreasonably refused and the refusal is persisted in for long time, it
will amount to cruelty. The question whether refusal will amount to legal cruelty depends upon
the facts of each case. Refusal of sexual intercourse is not per se cruelty, but its persistent refusal
would amount to cruelty.

In Shanker Prasad v. Madhabi the court held that where the wife has been refusing to sexual
intercourse without any reasonable justification or expressed her inability to co-operate in the
sexual act or she behaves in a manner that the consummation becomes impossible, such
deliberate acts of the wife would amount to legal cruelty and the husband would be entitled to
matrimonial relief.

(v) Neglect:

Neglect by the spouse in the discharge of his or her duties of attention and company to the other
and forcing the latter to leave the home on account of such neglect would in the circumstances of
any particular case constitute neglect amounting to cruelty. Incompatibility of temperament will
not amount to cruelty. Where the conduct of the husband was so cold and neglectful that it
affected the health of the wife and in case of continuance of such conduct she could have become
a victim of melancholia, the court held it to be a case of legal cruelty.11

In Rajendra Singh v. Taramati, the husband was seriously injured in an accident and was
admitted in a hospital. He remained in the hospital for treatment for about eight months, but the
11
https://www.lawyers.com/legal-info/family-law/divorce/grounds-for-divorce-cruelty.html

12
wife did not care to visit him regularly despite the information of his condition. The court held
that the conduct of wife was so neglectful that it amounts to cruelty and the husband is entitled to
get a decree of divorce.

(vi) Refusal to Speak:

Where one of the spouses living under the same roof refuses to speak to the other for a
considerable long time and it causes worry and anxiety to the other such conduct of the party
refusing to speak may amount to cruelty. While considering such conduct as a case of cruelty,
the attendant circumstances and relationship between the spouses has to be taken into
consideration.

(vii) Forcing Association with Improper Persons:

Each spouse enjoys a right to sanctity of the marital bed preserved unsullied by the intrusion of
strangers, and if either introduces such strangers to share the life of home and the conjugal
society of the other it would amount to cruelty. Where the husband induces his wife to have
intercourse with a stranger or induces her to put up with a lewd woman whom he has brought
into her room for his carnal satisfaction, the wife is entitled to resist all such immoral attempts by
filing a petition for judicial separation on the ground of cruelty. There cannot be greater degree
of cruelty than to compel a chaste wife to submit to overtures of other persons out of an ignoble
desire to make gains by prostituting the wife.

Similarly where a wife deliberately and consistently refused to satisfy the husband’s desire for
having children by insisting on use of contraceptives, thus disabling any conception, causing
anxiety and mental ill-health to the husband, it was held that the wife was guilty of cruelty to her
husband. Where the husband and other family members were crazy to have a child in the family
but their wishes were shattered by die conduct of the wife who always resorted to termination of
pregnancy it was held to be an act of cruelty.

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In Shobha Rani v. Madhukar Reddi12,the Supreme Court held that the word ‘cruelty’ used in
Section 13 (1) (i-a) of the Act is with reference to human conduct or behaviour in relation to or
in respect of matrimonial duties or obligations. It is a course of conduct of one which is
adversely affecting the other. The cruelty may be mental or physical, intentional or unintentional.
If it is physical, it is a question of fact and degree. If it is mental, the inquiry must begin as to the
nature of the cruel treatment and then as to the impact of such treatment on the mind of the
spouse. In this Case, the Supreme Court considerably enlarged the concept of cruelty and held
that the demand for dowry, which is prohibited under law, amounts to cruelty entitling the wife
to get a decree for dissolution of marriage.

There is no precise definition of cruelty because the term is so wide. Several situations and cases
over past 100 years have shown that cruelty can be mental or physical. In the case of Dastane vs
Dastane 1970 Bom, it was held that cruelty could be through words, gestures, or even by mere
silence.

A general explanation of cruelty can be found in the case of Russel vs Russel 1897, in which it
was held that any conduct that poses a danger to life, limb, or health - physical or mental, or
causes reasonable apprehension of such danger, is cruelty.

Earlier, the petitioner had to show that the act of the respondent caused reasonable apprehension
of danger. Thus, in the case of Sayal vs Sarla 1961 Punjab, when wife administered love-potion
to the husband, causing his hospitalization, it was held to be cruelty even though she did not
mean to hurt her husband because it caused reasonable apprehension of danger. However, now it
is not required. The clause merely says, "if the respondent has treated the petitioner with
cruelty". In the case of GVN Kameshwara Rao vs G Jalili 2002, SC held that it is not
necessary that the act has caused a reasonable apprehension in the mind of petitioner. The
emphasis will be on the act or conduct constituting cruelty. It further held that social status of the
parties, their education must be considered while determining whether the act constitutes cruelty
or not. Thus, what amounts to cruelty in one case may not amount to cruelty in another

12
AIR 1988 SC 121

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 4. DESERTION

Desertion means withdrawing from the matrimonial obligation, i.e., not permitting or allowing
and facilitating the cohabitation between the parties. It means the desertion of the petitioner by
the other party to the marriage without reasonable cause and without the consent or against the
wish of such party and includes the willful neglect of the petitioner by the other party to the
marriage.

The deserting spouse should be proved that there is- 1. factum of separation; i.e., living apart and
away from the deserted spouse, and 2. Animus deserendi; i.e., an intention to bring cohabitation
to an end permanently. Further, it should be proved that on the part of the deserted spouse, there
was- a. Absence of consent to the separation, and b. Absence of conduct giving reasonable cause
to the spouse to leave the matrimonial home. In matrimonial law, desertion means continual
absence from cohabitation contrary to the will or without the consent of the party charging it, and
without reasonable cause. Desertion is not to be tested by merely ascertaining which party left
the matrimonial home first. The party who intends to bring the cohabitation to an end and whose
conduct in reality caused its termination commits the act of desertion. Desertion was a ground
only for judicial separation under Hindu Marriage Act, 1955.101 However, after passing of the
Act of 1976, this is a ground for both divorce as well as judicial separation under Section 13 (1)
(i-b).

Three Types - Actual Desertion, Constructive Desertion, Willful neglect.

Actual Desertion - factum of desertion, animus deserendi, Without reasonable cause, without
consent, 2 yrs must have passed.

Desertion for the purpose of seeking divorce under the Act means the intentional permanent
forsaking and abandonment of one spouse by the other without that other’s consent and without
reasonable cause. In other words, it is a total repudiation of the obligations of marriage.
Desertion is not the withdrawal from a place, but from a state of things. Desertion is not a single
act complete in itself; it is a continuous cause of conduct to be determined under the facts and
circumstances of each case.

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In Durga Prasanna Tripathy v. Arundhati Tripathy13, the wife had deserted the husband after
seven months of marriage and the parties were living separate since a period of fourteen years.
Wife was not willing to live with husband in spite of all efforts. Better part of their lives was
wasted in litigation and the parties disliked each other. There was irretrievable breakdown of
marriage. Therefore, to put an end to litigation and to put an end to the bitterness between the
parties, divorce on the ground of desertion can be granted.

Constructive Desertion - If a spouse creates an environment that forces the other spouse to leave,
the spouse who created such an environment is considered deserter.

Jyotish chandra vs Meera14- Husband was not interested in wife, he was cold, indifferent,
sexually abnormal and perverse. Went to England. Then came back and sent wife to England for
PhD. When wife came back, did not treat her well. Abused her and his inlaws physically. Wife
was forced to live separately. Held desertion by husband.

Wilful Neglect - If a spouse intentionally neglects the other spouse without physically deserting,
it is still desertion. Refusing to perform basic marital obligations such as denial of company or
intercourse or denial to provide maintenance is wilful neglect.

Reasonable Cause

1. If there is a ground for matrimonial relief. (Ground for void, voidable marriage or grounds for
maintenance under sec 18 of HAMA).

2. If spouse is guilty of a matrimonial misconduct that is not enough for matrimonial relief but
still weighty and grave.

3. If a spouse is guilty of an act, omission, or conduct due to which it is not possible to live with
that spouse.

13
AIR 2005 SC 3297
14
AIR 1970 Cal 266

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 5. CONVERSION

Prior to the amendment of Section 10 of the Act by Marriage Laws (Amendment) Act, 1976,
conversion was a ground of decree of divorce and now it has also been made a ground for
judicial separation. According to this sub-section, ceasing to be a Hindu by conversion on the
part of the other party to the marriage, forms a ground for a decree of judicial separation and of
divorce. The petitioner, who himself ceases to be Hindu by conversion, cannot claim a decree for
judicial separation or for divorce on the ground of his or her conversion.

Under Section 13 (1) (ii) of the Hindu Marriage Act, 1955 if the spouse has ceased to be a Hindu
by conversion to another religion, divorce may be obtained. Originally, this ground was not
available for judicial separation in Section 10 of the Hindu Marriage Act, 1955. By an
Amendment of Section 10 in 1964, it was made a ground for judicial separation. Subsequently in
1976, the grounds for judicial separation were omitted in Section 10 and were incorporated with
slight modifications in Section 13, and is therefore a ground for divorce under Section 13 (1) (ii).
When one spouse voluntarily relinquishes one’s religion and adopts another distinctive religion
after formal ceremonies, it is conversion on his part. Thus, one should adopt some other religion
which cannot be regarded as Hindu religion. If a Hindu person who is a Jain adopts Buddhism,
he is still a Hindu. He cannot be said to have changed his religion.

If one spouse ceases to be a Hindu, the marriage continues to be governed by Hindu law and it
can be dissolved only under the provisions of the Hindu Marriage Act, 1955. However, if both
the spouses change their religion and cease to be Hindus, none of them can invoke the aid of this
Section. The remedy of dissolution of marriage on the ground of conversion is not available to
the converting spouse. It is the other spouse who remains a Hindu that can avail of this ground if
he or she so desires.

Conversion of the respondent to a non-Hindu faith does not amount to automatic dissolution of
marriage. The petitioner has to file a petition to obtain a decree of divorce. If the petitioner
chooses to continue to live with the spouse who has converted to another religion, there is
nothing to debar him or her from doing so.

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 6. UNSOUNDNESS OF MIND

Incurable unsoundness of mind of either party to marriage is a ground of judicial separation. The
Amendment Act of 1976 has amended the section and now it is no longer required to establish
that the other party has been continuously of unsound mind for a period not less than two years
immediately prior to the presentation of the petition.

The petitioner has to establish that the respondent 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 be expected to live with the respondent. The expression ‘mental
disorder’ means mental illness, arrested or incomplete development of mind, psychopathic
disorder or any other disorder or disability of mind and includes schizophrenia.

The expression psychopathic disorder means a persistent disorder or disability of mind (whether
or not including sub-normality of intelligence) which results in abnormally aggressive or
seriously irresponsible conduct on the part of the other party and whether or not it requires is
susceptible to medical treatment. This clause requires that the respondent’s unsoundness of mind
should be incurable.

Before passing of the Marriage Laws (Amendment) Act, 1976 the position of insanity as ground
of divorce or judicial separation was as follows:

i) Insanity (whether curable or incurable) - lasting for not less than two years ending with the
filing of the petition was a ground for judicial separation;

ii) Incurable insanity- lasting for at least three years immediately preceding the filing of the
petition was a ground for divorce.

In 1974, the law commission recommended abolition of the duration for the purpose of treating it
as a ground for divorce. In 1976, while unifying the grounds for judicial separation and divorce,
the legislature not only accepted the said recommendation, it also went further to explain and
expand the concept of insanity under Section 13. This was done in the light of the commission’s
general observations regarding insanity.

Now the Act refers to two distinct mental conditions, namely:

18
1. Unsoundness of mind, and

2. Mental disorder.

The conditions attached to each of these two are:

1. Unsoundness of mind must be incurable; and

2. Mental disorder (whether continuous or intermittent) must be ‘of such a kind and to such an
extent that the petitioner cannot reasonably be expected to live with the respondent’.

After passing of the Marriage Laws (Amendment) Act 1976, incurable unsoundness of mind or
continuous or intermittent mental disorder of such a nature as to disable the petitioner to live
reasonably with the respondent makes the petitioner eligible to get a decree of divorce. The term
“mental disorder” has been widely interpreted so as to include mental illness, arrested or
incomplete development of mind, psychopathic disorder or any other disorder or disability of
mind and includes schizophrenia.

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 7. LEPROSY

Prior to the amendment in the Hindu Marriage Act, 1955 by the Amendment Act of 1976, for
getting a decree for judicial separation under this clause, it was to be established that the
respondent has, for a period not less than one year immediately prior to the presentation of the
petition been suffering from virulent form of leprosy.

Under the Amendment Act of 1976, the period of one year has been deleted and the word
incurable has been added. In order to get a decree of judicial separation under this clause, it has
to be established that the respondent has been suffering from a virulent and incurable “form of
leprosy.”

The leprosy which is malignant or venomous can be termed as virulent. Lepromatous leprosy is
virulent and incurable.

Before passing of the Marriage Laws (Amendment) Act, 1976 the position of ground of leprosy
for divorce was as follows: “the other party has for a period of not less than one year
immediately preceding the presentation of the petition, been suffering from a virulent form of
leprosy”, it was a ground for judicial separation.

If it was virulent and incurable, it was a ground for divorce, where it lasted for three years ending
with the filing of the petition. The Marriage Laws (Amendment) Act 1976 has made leprosy, a
ground for both judicial separation and divorce. It omitted the period of three years. Under this
clause, the petitioner is required to show that the respondent has been suffering from virulent and
incurable leprosy.

Clause (iv) of Section 13 (1) of the Hindu Marriage Act, 1955 lays down that the divorce can be
obtained by a spouse if the other party has been suffering from a virulent and incurable form of
leprosy.

There are various types of leprosy. They are classified under:

a) Lepromatous leprosy,

b) Tuberculoid leprosy,

c) Maculoan aesthetic leprosy,

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d) Polyneuritic leprosy,

e) Borderline leprosy and

f) Indeterminate leprosy.

Of these, Lepromatous leprosy at present, is the most dangerous and aggravated form of leprosy.
In this leprosy, the person suffering from it has low resistance and mycobacterium leproe
multiply very fast, almost in astronomical number. It is in malignant form and highly contagious.
It is incurable and there are hardly any chances of self-arrest and regression.

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 8. VENEREAL DISEASE

Tine Amendment Act of 1976 has dispensed with the requirement of three years suffering from
venereal disease and now it requires to establish for judicial separation that the respondent has
been suffering from venereal disease in a communicable form. By this amendment the words
“the disease not having been contracted from the petitioner” have also been omitted.

A man knowing that he has a venereal disease, if he compels his wife, she being unwilling,
owing to his condition, to have intercourse with him, may be found guilty of cruelty though in
fact, she does not infect her. The expression ‘communicable’ shows that the disease not has been
communicated to the petitioner. It is enough to show that the disease has developed in an
advanced stage that it poses a danger of infection or contagion to whatsoever comes into his/her
contact.

Venereal disease is a ground both for judicial separation and divorce. Originally under the Hindu
Marriage Act 1955, the requirement for judicial separation was as follows:

“Respondent has for a period of not less than three years immediately preceding the presentation
of the petition, been suffering from venereal disease in a communicable form, the disease not
having been contracted from the petitioner”. Clause (v) of Section 13 of the Hindu Marriage Act
1955 which contains the venereal disease as a ground of divorce lays down that a spouse may
present a petition for dissolution of marriage on the ground that the other spouse has been
suffering from venereal disease in a communicable form.

The Marriage Laws (Amendment) Act, 1976 has simplified this ground. Prior to amendment, the
disease was required to be of three years duration. The amendment has done away with the
period. Now under the Hindu Marriage Act, 1955 the venereal disease to be a ground of judicial
separation or divorce, should be in a communicable form.

Venereal diseases comprise a number of contagious diseases that are most commonly acquired in
a destroyer of life (syphilis) and a preventer of life (gonorrhea). The group includes at least three
other diseases; cancroid, lymphogranuloma venereum and granuloma inguinale. These five are
linked not because of similarity of causative agents, tissue reactions and symptoms produced, but
because of the principal means of spread of each disease is by sexual intercourse especially
promiscuous sexual intercourse, as implied by their group name, venereal which is derived from

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the name of goddess of love, ‘Venus’. Not only are the causative agent’s different
morphologically but they also represent five distinct classes of micro-organisms: Spirochetes;
bacilli; viruses and Donovan body (perhaps a bacterium).

The most common form of venereal diseases are Syphilis and Gonorrhea; and of these two,
former is considered to be more dangerous. Gonorrhea is considered to be more treatable and in
most of the cases, complete cure can be obtained. Syphilis in early stage is also now curable.
Congenital syphilis is not a disease in a communicable form and is thus not considered to be
ground of divorce.

It is immaterial that the disease incurable or was contracted innocently. The duration of the
disease is not mentioned. Therefore, it may be of any duration. The Hindu Marriage Act, 1955
does not say that the disease should not have been contracted form the petitioner. If the disease is
contracted form the petitioner, under the Hindu Marriage Act, 1955 by virtue of Section 23 (1)
(a), the decree cannot be passed as it would amount to ‘taking advantage of one’s own wrong’.

In Mr. X v. Hospital Z (AIR 1999 SC 945), though it is a case under Art. 21 of the Constitution
of India i.e., right to Privacy where the question was as to the disclosure of a person being HIV
Positive by the hospital is violative of Article 21? In the context of marriage it was held that the
basis of this institution is a healthy body and moral ethics. Since as law provides Venereal
disease as a ground for divorce it implies that a person suffering from Venereal disease prior to
marriage must be injuncted from entering into marriage so as to prevent him from spoiling the
health and consequently the life of an innocent spouse.

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 9. RENUNCIATION OF THE WORLD

Before the amendment in the Hindu Marriage Act, 1955 this ground was not available for a
decree of judicial separation and it was a ground only for divorce. The Marriage Laws
(Amendment) Act, 1976 has made this clause also a ground for judicial separation.

The renunciation implies a religious order which operates as a civil death and, therefore, the
other party has been given right to obtain a decree of judicial separation or divorce. Mere
declaration of the renunciation of the world by a person is not sufficient and it has to be further
proved that such person has joined some religious order contrary to the concept of marriage.

Clause (vi) of Section 13 (1) lays down that a spouse may seek divorce if the other has
renounced the world by entering into any religious order. Thus the requirements of the clause
are:

a) the other party has renounced the world, and

b) has entered into a holy order.

Hindus recognize Sanyasa Ashrama as the last of the four Ashramas into which, the life of a
Hindu is organized. According to Hindu religion, every Hindu is required to enter the last
ashrama in his old age. Entering into this ashrama amounts to civil death. For taking sanyas, a
person has to perform eight shradhas (including his own sradha) and has to give up his
matrimonial life and property. A Hindu can according to his religion, renounce the world and
take up sanyas or vanaprastha ashram. Such a person is known as sanyasi, yati, vanaprastha or
perpetual brahmachari, cannot any more attend to his worldly obligations. Therefore, law treats
sanyas etc., as civil death. The sanyasi gives up his name and assumes a new name. In other
words, entering into a sanyasa ashram means not merely renunciation of the world and worldly
things, but also renunciation or rather an end of one’s worldly life led in grihasth ashrama or the
life led in the vanaprastha ashrama. Entering into the sanyasa ashrama in the old age is in
accordance with Hindu religion. A person may enter into a holy order even at the young age and
it is not contrary to Hindu religion. But it becomes a ground for divorce. The reason seems to be
that one can follow the religious faith or belief one has, but it should not amount to hardship to
one’s spouse. And when one spouse leaves the other, even by becoming a sanyasi, it prima facie
causes hardship to the other party. Looked at from this angle, to become a sanyasi is no hope that

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the sanyasi spouse will ever return to resume cohabitation. This seems to be the reason for
making it a ground for divorce.

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 10.PRESUMPTION OF DEATH

Under the Marriage Laws (Amendment) Act, 1976, the fact that the other party has not been
heard of as being alive for a period of seven years or more by those who would naturally have
heard of it, had that party been alive, has also been made a ground for judicial separation.
Previously it was ground for divorce only.

Clause (vii) of Section 13 (1) of the Hindu Marriage Act, 1955 which lays down that a spouse
may file a petition for divorce on the ground that the other spouse has not been heard of being
alive for a period of seven years or more by those persons who would naturally have heard of it,
had that party been alive. Under Section 108 of the Indian Evidence Act, 1872, a person is
presumed to be dead if he is not heard of as alive for seven years or more by those who would
have normally heard from him or about him had he been alive. Under matrimonial law, the other
spouse on the basis of presumption of death, by assuming that he or she has become a widower
or widow, contracts a second marriage and after some time, the missing spouse re-appears, then
the second marriage is void under Section 11 and the spouse can also be prosecuted for bigamy.

To avoid the risk of missing spouse re-appearing, rendering the second marriage void, Clause
(vii) of Section 13 (1) provides that a petitioner may obtain a decree of dissolution of marriage
on this ground. Once the marriage is dissolved, the petitioner is free to marry again and even if
the missing spouse returns the next day of the passing of the decree or much before the second
wedding, he can do nothing.146 He or she as the case may be is not entitled to the restitution of
conjugal rights with the petitioner (who has obtained divorce). The remarriage of the decree
holder is not violative of Section 5 (i) of the Hindu Marriage Act, 1955 and hence is not bigamy.

A court may under Section 108 of the Indian Evidence Act, 1872 draw the presumption in the
above circumstances that the person is dead. Though the Hindu Marriage Act, 1955 does not
draw this presumption, but it seems that it is based on the above presumption. As it is not a
presumption of the death of the respondent, the petitioner cannot take it for granted that his or
her marriage is ipso facto dissolved as in the case of the actual death of the respondent.

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.

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 11.ADDITIONAL GROUNDS FOR WIFE- SECTION 13(2)

In addition to the above mentioned grounds, Sub- Section (2) of Section 13 of Hindu Marriage
Act, 1955 provides four additional grounds to the women for obtaining divorce from her
husband. Originally, Section 13 (2) of the Hindu Marriage Act, 1955 provided only for two
special grounds on which, a Hindu wife alone could seek divorce. Later, the Marriage Laws
(Amendment) Act, 1976 has added two more grounds. Thus, a wife may file a petition for
divorce on any one of the following four grounds: i. in the case of any marriage solemnized
before the commencement of this Act, that the husband had married again before such
commencement or that any other wife of the husband married before such commencement was
alive at the time of the solemnization of the marriage of the petitioner: Provided that in either
case, the other wife is alive at the time of the presentation of the petition; or ii. that the husband
has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality; or iii. that
in a suit under Section 18 of the Hindu Adoptions and Maintenance Act, 1956 or in a proceeding
under Section 125 of the Code of Criminal Procedure, 1973, (or under the corresponding Section
488 of the Code of Criminal Procedure 1898, a decree or order, as the case may be, has been
passed against the husband awarding maintenance to the wife notwithstanding that she was
living apart and that since passing of such decree or order, cohabitation between the parties has
not been resumed for one year or upwards; or iv. that her marriage (whether consummated or
not) was solemnized before she attained the age of fifteen years and she has repudiated the
marriage after attaining that age but before attaining the age of eighteen years.

Explanation: This clause applies whether the marriage was solemnized before or after the
commencement of the Marriage Laws (Amendment) Act 1976. Section 13 (2) (i): deals with
bigamous marriage. Before passing of the Hindu Marriage Act, 1955 a Hindu male can marry as
many wives as he liked and no limit to the number of wives. Later, It is provided by Section 13
(2) (i) that if a man had married more than one wife before the Hindu Marriage Act, 1955 came
into force, then every wife was given a right to seek divorce from the husband on the ground of
his pre-Act remarriage. The first wife on the plea that her husband married again during her life
time and the second wife on the plea that her husband married her when he already possessed a
wife. A petition for divorce is barred if no other wife is alive due to death or divorce. But if once
a petition is made, the death or divorce of the other wife does not bar the decreeing of divorce.

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If a person rapes a woman who is not his wife, he is guilty of rape and his wife can sue for
divorce. It is immaterial as to whether the woman is related to him or not. The age of the woman
raped is also immaterial. A mere attempt of rape will not be sufficient. Further, Section 376-A
provides punishment to a husband having intercourse with his wife during separation. Rape is a
criminal offence under Section 375 of Indian Penal Code and a person guilty of these offences
can be prosecuted in a criminal court. However, under the Hindu law, these are recognized as
special grounds of divorce for the wife.

‘Sodomy’ is anal intercourse by a man with his wife or with another woman or with a man. The
age and consent of the victim is irrelevant. If a man commits sodomy on his own wife without
her consent.

Then it would amount to the matrimonial offence of sodomy within the meaning of the clause.
Bestiality’ means sexual intercourse with an animal

Section 13 (2) (iii) lays down that, where a wife obtains a decree or order for maintenance either
under Section 18 of the Hindu Adoptions and Maintenance Act, 1956 or under Section 125 of the
Code of Criminal Procedure, 1973 if cohabitation between the parties had not been resumed for
one year or upwards after the decree, can avail herself of this provision for obtaining divorce,
notwithstanding that she was living apart. Where a decree under Section 18 of the Hindu
Adoptions and Maintenance Act, 1956 or under Section 125 of the Code of Criminal Procedure,
1973 is passed in favour of the wife, it becomes the duty of her husband to pay maintenance to
her and he must resume cohabitation within one year. If he fails to do so, the wife can seek
divorce.

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 12.COURT’S POWER TO RESCIND THE DECREE

Where a decree for judicial separation has been passed, it shall no longer be obligatory for the
petitioner to cohabit with respondent but the court may on application by petition of 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 (Section 10 (2)). The power to rescind though available
under Section 10 (2), must be exercised with circumspection only to achieve the purpose of
giving every opportunity to the parties for reconciliation. The question whether the ground urged
is sufficient to make the case fit for recession of decree comes after the Court is satisfied about
the truth of the averments made in the application.

In the case of S. Narasimha v. Vijaya Bai,15 the Karnataka High Court has decided that the
statute does not refer to any specific grounds on which the decree for judicial separation can be
annulled or rescinded. Section 10 (2) of the Act, however, empowers the court to rescind the
decree for judicial separation if it considers it just and reasonable to do so. A party against whom
a decree for judicial separation is passed cannot succeed in getting the decree rescinded, in the
absence of other circumstances which justify an order of rescission to be passed, merely by
saying that he or she is willing to re-join and live with the other spouse. The power conferred on
the Court under Section 10 (2) has to be exercised with great circumspection.

THE FOLLOWING ARE THE CIRCUMSTANCES IN WHICH THE COURT MAY

RESCIND THE DECREE:

 If the decree had been obtained ex parte, by showing reasonable excuse for his or her
absence, or for his or her alleged desertion.
 If the parties had cohabited with each other, after the decree, or have come to terms with
each other and have again begun to live as husband and wife.
 If the opposite party has condoned the offence.

15
AIR 1978 Kant. 115

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  If the opposite party has satisfied the court that he or she is willing to live as husband and
wife and is not going to do any such thing in future on which judicial separation was
granted (Section 23).
 If the opposite party is cured of leprosy or venereal disease, or unsoundness of mind and
in spite of that, the petitioner is not willing to resume cohabitation (Section 23).

STANDARD OF PROOF

While awarding the relief, the Court must be satisfied beyond all reasonable doubt; what is
required is that there should be strict inquiry into the matter. It does not mean that proof should
reach certainty. But it must carry a high degree of probability.

INCIDENTS AND EFFECTS OF JUDICIAL SEPARATION

The following are the incidents and effects of an order of judicial separation:

1. That the marriage tie is not dissolved.

2. That after the passing of decree of judicial separation, the husband and wife are not
bound to live together or dine together as judicial separation is separation from bed and
board.
3. After the decree of judicial separation it will not be obligatory for the parties to cohabit
with each other.
4. It does not prevent the parties from subsequent resuming cohabitation and living together
as husband and wife as originally they did. It is not necessary for them to undergo the
ceremony of marriage again because their original marriage still subsists in spite of the
decree of judicial separation.
5. A fortiori if either spouse marries during that period, he or she will be guilty of bigamy
and will be liable for punishment prescribed by Section 17 of this Act.
6. The petitioner, if she be the wife, becomes entitled to alimony from the husband, and if
he is the husband he can claim maintenance from wife under Section 25 of this Act.

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7. The wife shall, from the date of decree and till separation continues, be considered as a
feme sole, i.e. “independent woman” with respect to property of every description.
8. The mutual rights and obligations arising from the marriage are suspended and the rights
and duties prescribed by the decree are substituted therefor.

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 13.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.

The hypothesis taken at the very first while making this project has either been proved or
disproved. The first hypothesis that the unsoundness of mind is a ground to Judicial Separtion
has been proved as unsoundness of mind of either party to marriage is a ground of judicial
separation. The Amendment Act of 1976 has amended the section and now it is no longer
required to establish that the other party has been continuously of unsound mind for a period not
less than two years immediately prior to the presentation of the petition

The second hypothesis that the wife has additional grounds to attain the decree of Judicial
Separation against her husband is also correct. In the case of a wife there are additional grounds
under Section 13(2).

Thirdly, the hypothesis that Judicial Separation is different from Divorce is also true as it has
been mentioned in the project that Judicial Separation is granted on the same ground as that of
divorce can be but it does not lead to total dissolution of the marriage as under Divorce. Also,
divorce has additional grounds under Section 13.

Fourthly, the hypothesis that the judicial separation might lead to reconciliation is false or has
been unproved as the concept is to stay apart and not to reconcile. Although the Court of law on
being satisfied by the truth of the statements may rescind the decree but it is no manner the
aspect or ground for reconciliation between the parties.

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

32
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.

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BIBLIOGRAPHY
1. Diwan, Paras Family Law Allahabad law agency
2. Dinshaw Fardunji Mulla, mulla hindu law (LexisNexis)
3. Kusum, family law lectures (LexisNexis)

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