Family Law Judicial Seperation.docx

UNIVERSITY INSTITUTE OF LEGAL STUDIES

FAMILY LAW A PROJECT REPORT ON JUDICIAL SEPARATION

Submitted to: -

Submitted By:-

Dr. Jai Mala

Dishant Mittal B.comLLb Roll no.:- 130/15 3rd Sems.

Contents ACKNOWLEDGEMENT ............................................................................................................................. 3 Separation meaning:-.............................................................................................................................. 4 JUDICIAL SEPARATION ............................................................................................................................ 5 Section 10:- JUDICIAL SEPARATION ........................................................................................................ 6 Adultery............................................................................................................................................... 8 Cruelty ................................................................................................................................................. 9 Desertion........................................................................................................................................... 11 Conversion ........................................................................................................................................ 13 Insanity or Unsoundness of Mind ..................................................................................................... 14 Leprosy .............................................................................................................................................. 15 Venereal Disease............................................................................................................................... 15 Renunciation of the World................................................................................................................ 16 Presumption of Death ....................................................................................................................... 17 Grounds available to wife Only ............................................................................................................. 18 Husband is guilty of Bigamy .............................................................................................................. 18 Husband is guilty of Sodomy, bestiality or rape ............................................................................... 19 Difference between Judicial Separation and Divorce ........................................................................... 19 BIBLIOGRAPHY ...................................................................................................................................... 21

ACKNOWLEDGEMENT Success is a blend of multiple efforts. The final import of this project is also a result of the sheer hard work and constant support of many people. I would like to take this opportunity to thank all of them. To begin with, I would like to express my humble gratitude to my teacher, Dr. Jai Mala, for her able guidance and mentoring. The meticulous manner in which she teaches has paid significantly in the completion of this project. Secondly, I would like to thank my department, University Institute of Legal Studies, Panjab University, Chandigarh, for providing such an expansive library which provided me all the relevant material required for this project. Last but not the least, I would like to express my profound gratitude to my parents and my friends who have constantly supported and motivated me throughout this project.

Dishant Mittal

Separation meaning:Separation of parties, whether under a decree of court known as Judicial separation or by an agreement between parties called Consensual separation, means separation from bed and board. After separation parties are not bound to cohabit with each other. During the continuance of separation, parties are entitled to separate from each other and all basic martial obligations remain suspended. Mutual rights and obligations of marital intercourse and living with each other no longer remain operative; marital obligations and rights, save those preserved expressly or impliedly are not available to parties. Parties remain husband and wife. If anyone of them remarries, he or she will be guilty of bigamy. In a separation by agreement, the state of separation to an end the moment the parties revoke the agreement or start cohabiting with each other. In Judicial separation, since a decree for judicial separation is a judgment in rem, if the parties want to resume cohabitation, an order of the court rescinding the decree will be necessary.

JUDICIAL SEPARATION Judicial separation 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 order. Judicial separation does not automatically lead to divorce. The couple might reconcile, in which case they do not have to do anything in order to continue their marriage. If the two do not reconcile, and they wish to proceed with a divorce, they must file for divorce explicitly. 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 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 cohabitation. 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 spouse1. Judicial separation is considered to be a lesser evil as it leaves open door for reconciliation. Judicial separation is usually granted on certain specified grounds

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Hindu Marriage Act, 1955 Section 10:- JUDICIAL SEPARATION2 Section 10:- (1) Either party to a marriage, whether solemnized before or after the commencement of this Act, may present a petition praying for a decree for judicial separation on any of the grounds specified in sub-section (1) of Section 13, and in the case of a wife also on any of the grounds specified in sub-section (2) thereof, as grounds on which a petition for divorce might have been presented (2) Where a decree for judicial separation has been passed, it shall no longer be obligatory for the petitioner to cohabit with the respondent, but the court may, on the application by petition of either party and on being satisfied of the truth of the statement made in such petition, rescind the decree if it considers it just and reasonable to do so.

Section 10 of HMA, 1955 defines either party to a marriage can apply for judicial separation an grounds that are mentioned in Section 13 of HMA, 1955. Grounds in Section 13(1) are available to both husband and wife. But there are some certain grounds which are available to only wife to seek for judicial separation. The following are the grounds3 available to both husband and wife for obtaining a

decree

of

Judicial

Separation:-

1) Adultery: After the solemnization of the marriage, had sexual intercourse with 2

any

person

other

than

his

or

her

spouse.

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2) Cruelty: Treated the petitioner with such cruelty as to cause a reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for the

petitioner

to

live

with

the

other

party

3) Desertion: Deserted the petitioner for a continuous period of not less than two

years

immediately

preceding

the

presentation

of

the

petition.

4) Conversion: Ceased to be a Hindu by converting to other religion 5) Insanity: Continuously of unsound mind or insanity for a period of not less than two years immediately preceding the presentation of the petition 6) Leprosy: For a period of not less than one year immediately preceding the presentation of the petition, been suffering from a virulent form of leprosy 7) Venereal Disease: Immediately before the presentation of the petition, been suffering from venereal disease in a communicable form, the disease not having been

contracted

from

the

petitioner;

or

8) Renunciation of the world: Renounced the world by entering any religious order 9) Not being heard for seven years: Not been heard of as being alive for a period of seven years The following grounds are available for the wife over and above the 9 grounds stated above 1)Husband

is

having

more

than

one

wife

2) Husband is guilty of Sodomy, bestiality or rape 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. 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 rescission4.

Adultery ADULTERY MEANS voluntary sexual intercourse outside lawful wedlock. Under the Hindu Marriage Act, 1955 which came into force on May 18,1955 adultery has been incorporated as a ground for judicial separation and divorce. Adultery means Sexual intercourse between a married person and a third party. Courts once used adultery, once the sole ground for divorce in some jurisdictions, to punish the guilty. Today courts are more interested in the economic impact of adultery, if any, on the marital estate. The legal definition of adultery however varies from country to country and statute to statute. While at many places adultery is when a woman has voluntary sexual intercourse with a person other than her husband, at other places adultery is when a woman has voluntary sexual intercourse with a third person without her husband’s 4

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consent. In the traditional English common law, adultery was a felony. Although the legal definition of "adultery" differs in nearly every legal system, the common theme is sexual relations outside of marriage, in one form or another.

Case:- S.K Deshmukh v. Chitera Lekha5. In this case Decree of

Judicial separation was passed on 5.2.1997, against husband on the ground of adultery. Fact that Husband was living in adultery with other woman was the reason why wife asked for Judicial separation and court passed the decree of judicial separation.

Cruelty A spouse can file a judicial separation case when he/she is subjected to any kind of mental and physical injury that causes danger to life, limb and health. The intangible acts of cruelty through mental torture are not judged upon one single act but series of incidents. Cruelty in matrimonial life may be of unfounded variety, which can be subtle or brutal. It may be words, gestures or by mere silence, violent or non-violent. Certain instances like the food being denied, continuous ill treatment and abuses to acquire dowry, perverse sexual act etc are included under cruelty. To constitute cruelty, the conduct complained of should be "grave and weighty" so as to come to the conclusion that the petitioner spouse cannot be reasonably expected to live with the other spouse. It must be something more serious than "ordinary wear and tear of married life". The conduct taking into consideration the circumstances and background has to be examined to reach the conclusion whether the conduct complained of amounts to cruelty in the matrimonial law. Conduct has to be considered, as noted above, in the background of several factors such as social status of parties, their education, physical and mental conditions, customs and traditions. It is difficult to lay down a precise definition

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1998 Family Law Cases 537

or to give exhaustive description of the circumstances, which would constitute cruelty. It must be of the type as to satisfy the conscience of the Court that the relationship between the parties had deteriorated to such extent due to the conduct of the other spouse that it would be impossible for them to live together without mental agony, torture or distress, to entitle the complaining spouse to secure divorce. Physical violence is not absolutely essential to constitute cruelty and a consistent course of conduct inflicting immeasurable mental agony and torture may well constitute cruelty. Mental cruelty may consist of verbal abuses and insults by using filthy and abusive language leading to constant disturbance of mental peace of the other party. Case:- Manisha Tyagi vs. Capt. Deepak Kumar6. In this case, an army officer, and an advocate, got married according to Hindu rites on 17.11.1991. However, they soon fell apart, and started living separately from 31.12.1992 onwards. The husband filed a petition for divorce on the ground of cruelty, before the District Court of Gurgaon under Section 13 of the Hindu Marriage Act. The husband alleged that the wife was rude, ill- mannered, quarrelsome and schizophrenic, and that she had made his life a living hell. He alleged that she shouted and made scenes and humiliated him in front of his officers and jawans, made allegations of sodomy against him, and allegations against his old and infirm father of molesting her. Besides, the husband also alleged that the wife filed various criminal cases against him, which ended in either his acquittal, discharge, or were quashed, thereby indicating that they were all false. Further, that she hurled filthy abuses on him and his family members, compared him to a barking dog, and had erratic sexual behaviour. According to him, she has been constantly threatening him as well as his family that since she and her two uncles are advocates they would make the lives of the husband and his family miserable. The husband complained that the wife had

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been making baseless complaints to his superiors, which has affected his career prospects in the Army. The husband filed a claim for cruelty against his wife. The wife also made equally vile allegations of dowry demand, sodomy, and mental and physical torture in various ways. In sum, there were innumerable complaints and allegations made against each other. Best efforts for reconciliation were made by the Court but to no effect. The trial Court on evaluation of the entire evidence found that even though it was a case where marriage had broken, but under the law as it exists, the marriage could not be dissolved on the ground of irretrievable breakdown. The Court found both the parties at fault, and did not grant the decree of divorce as the husband could not prove cruelty of wife so as to entitle him to a decree of divorce. On appeal against this by the husband, the single judge observed that the wife had exceeded all limits of decency and crossed the ‘Lakshman Rekha’ when she went to the extent of lodging a false FIR, and when she tried to humiliate him in front of his superiors. The Court found both the parties at fault, and adopted a middle path by granting a decree of judicial separation under Section 10 of the Hindu Marriage Act, so that the parties might ponder over their differences and re-unite, for the welfare of their daughter.

Desertion Under Hindu Marriage Act, desertion for two years is a ground for a decree for judicial separation. “The expression ‘desertion’ 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 marriage, and its grammatical variations and cognate expressions shall be construed accordingly.” In its essence desertion means the intentional permanent forsaking and abandonment of one spouse by the other without that other’s consent and reasonable cause. It

is a total repudiation on the obligations of the marriage. For the offence of desertion, so far as the deserting spouse is concerned, two essential conditions are required: (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). In actual desertion, it is necessary that respondent must have forsaken or abandoned the matrimonial home. The de facto separation may have commenced without the necessary animus or it may be that the separation and the animus deserendi coincide in point of time.. However it is not necessary that the intention must precede the factum. For instance, a husband goes abroad for studies, initially he is contact with wife but slowly he ceases that contact. He develops attachment with another woman and decides not to return. From this time onwards both factum and animus co-exist and he becomes a deserter. Two elements are essential so far as the deserted spouse in concerned: (1) the absence of the consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention . If one party leaves the matrimonial home with the consent of the other party, he or she is not guilty of desertion. Many non-resident Indians (NRI) come to India to marry girls who are also aspirants to migrate from India by this marriage relation. It is often seen that some NRIs marry local girls, enjoy them and return to the foreign countries with vague hopes behind that their wives would be taken after completion of official formalities. But all those hopes are never materialized. Sometimes they receive papers in India in the form of foreign divorce decree. Case:- D.S. Seshadri vs Jayalakshmi7 The respondent was married to the petitioner on 11-1-1951. Soon thereafter the couple set up their home at Madras where the husband was employed as a clerk in the Revenue Department of the Government of Madras. The marriage 7

AIR 1963 Mad 283 , (1953) 1 MLJ 11

unfortunately was not a success and there were misunderstandings between the couple even from the very beginning. Within a month after they set up their home, the wife left her husband for her father's house at Conjeevaram taking with her all her belongings, Attempts by husband to bring her back did not succeed, but it is stated that the respondent came to Madras and stayed with her husband for about 15 days in August 1956 in connection with the obsequial ceremonies of the petitioner's father. On 30-9-1959 after having waited for nearly 8 years the petitioner filed a petition under Section 10 of the Hindu Marriage Act for judicial separation. The application was resisted by the respondent on the ground that there had been no desertion on her part as she was prevented from living with her husband by reason of the bad treatment accorded to her in his house by his mother and sister. That defense was found to be false. By his order dated 21-3-1960 the learned City Civil Judge found that the respondent had deserted the petitioner, without reasonable cause for a continuous period of more than two years preceding the prestion of the petition and passed a decree for judicial separation.

Conversion In Hindu marriage an appeal for judicial separation can be made on the ground that the respondent has ceased to be a Hindu by conversion to another religion. 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. The right to get a Judicial Separation under this law is therefore given to the party who continued to be Hindu. Mere professing or theoretical allegiance to a religion other than a Hindu religion does not mean conversion for the purpose of this provision. There must be voluntary relinquishment of Hindu religion by the respondent

and formal ceremonial conversion to another religion so as to attract this provision for the purpose of judicial separation8.

Insanity or Unsoundness of Mind A petition for judicial Separation might be presented by a spouse on the ground (a) that the respondent had been incurably of unsound mind, and (b) that the respondent had been so for a continuous period of not less than three years immediately before the filing of the petition. By the Marriage Laws (Amendment) Act 1976, the period of duration of unsoundness of mind has been omitted and elaborative clarifications have been made. The expression 'incurably of unsound mind' cannot be so widely interpreted as to cover feebleminded person or persons of dull intellect who understand the nature and consequences of their acts and are able, therefore, to control themselves and their affairs and their reactions in the normal way. To get Judicial separation on basis of unsoundness of mind either two conditions is to be fulfilled. First, the respondent has been incurably of unsound mind. Secondly, the respondent has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably by expected to live with the respondent. So far as the second condition is concerned, the petitioner will have to prove two elements, namely, mental disorder and at the same time that the disease must be of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent. So, proof of one element is insufficient to grant a decree9.

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Information Technology Act 2000, India available at: http://www.legalserviceindia.com ( visted on 13 oct, 2016)

Leprosy A petition for Judicial Separation may be presented by either party to the marriage on the ground that the respondent has been suffering from a virulent and incurable 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 dictionary meaning of the word 'virulent' is malignant and infectious. Lepromatus leprosy is a malignant, contagious and incurable form of disease. Legislature making a provision in this Act which will entitle a spouse to a decree of Judicial Separation. A spouse cannot be compelled to live with the other spouse who is suffering from an aggravated form of leprosy and who can give the petitioner and children leprosy almost any moment in their daily life. Thus the Legislature by a statute has given an aggrieved spouse a way of relief.

Venereal Disease Venereal disease in a communicable form is a ground for obtaining a decree for judicial separation. The 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 contact10.

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. A decree for Judicial Separation may be obtained on a petition presented by a spouse on the ground that the respondent has renounced the world by entering any religious order. This clause consists of two components. First, the respondent must have renounced the worldly affairs, and secondly, the respondent has thereafter entered into a religious order recognized by Hindu religion. Such entry requires some ceremonial performance or observance of certain formalities. Renouncement of the world by entering any religious order must be absolute. It amounts to civil death and has the effect of excluding a person from inheritance and right to partition. But persons merely wearing saffron-coloured clothes know as sadhus or bairagis and who enjoy a married life cannot be said to have renounced the world and entered a religious order. Similarly, the mere holding by a man of certain religious opinions or professions does not amount to civil death. Mere declaration of the renunciation of the world by a person is not sufficient and it

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has to be further proved that such person has joined some religious order contrary to the concept of marriage11.

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. This is a legal presumption of death which is based on English law of evidence. The presumption is drawn by reason of the fact that if the person were living, the person would probably have communicated with some of his or her friends and relatives. This presumption may also be rebutted where a person is not heard of for a period of seven years by reason of special circumstances, such as absconding on a charge of murder. A decree nisi will be resounded where the respondent is proved to be alive before the decree made absolute. The onus of proving the absence of the respondent for the statutory period without being heard of as alive lies on the petitioner. The petitioner is required to give particulars relating to the last date of cohabitation, the date and place last seen the respondent and steps taken to trace the respondent. Evidence as to reasonable inquiry or search about the respondent is necessary to be adduced by the petitioner. But the onus of proving that the respondent is alive lies on the person who pleads so12.

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Grounds available to wife Only Certain grounds on which are available only to wife to get judicial separation:-

Husband is guilty of Bigamy Bigamy is a marriage in which one of the parties is already legally married. Bigamous marriages are void, and grounds for annulment. Local laws should be consulted, but typically a person who discovers they are married to a bigamist may have a judge declare the marriage void and seek to have criminal charges filed against the bigamist. A person commits bigamy when he intentionally contracts or purports to contract a marriage with another person when he has a living spouse. In 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. Whosoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished. For prosecution for bigamy one must show first of all that at the time of the second marriage, there was first valid subsisting marriage; where proof of either marriage is unsatisfactory, there ought to be no conviction. It cannot be argued that the marriage by a husband or a wife whose wife or husband is living at the time of the second marriage13.

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Husband is guilty of Sodomy, bestiality or rape Under section 13(2) this ground to appeal for judicial separation is available only to wife. Wife can appeal for judicial separation in the case where the husband is guilty for the sodomy, bestiality or rape after the solemnization of marriage with his petitioner.

Difference between Judicial Separation and Divorce Although the procedure of dealing defended and undefended proceedings for both judicial separation and divorce are similar, yet there are certain differences between them. Explore them as follows14: 

Judicial Separation does not terminate marriage whereas in divorce the parties are no more husband and wife and hence the marriage ends.



While undertaking proceedings for judicial separation, the court does not have to consider that the marriage is permanently closed or broken down whereas in divorce it is required while presenting the petition.



Both the parties can file for judicial separation any time post marriage whereas in case of divorce the parties can only file for divorce only after completion of one year of marriage.



A judicial separation goes through one stage judgment procedure however; divorce goes through a two stage judgment process.



There are certain provisions in Matrimonial Causes Act 1973 that are applicable to divorce but are not applied to judicial separation petitions irrespective of going through a two or five year separation period.

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

Judgments with respect to Wills are not applicable in case of Judicial separation. In case the parties are undergoing a separation time and if one of the spouse dies then the existing spouse will not be benefited out of it and thus the property will devolve.

Hence, Judicial Separation is a process wherein, the Court provides a final turn to a couple seeking divorce, to try resolving their differences by living separately, before the initiation of divorce proceedings. This gives time for introspection and resolving the matrimonial disputes and misunderstanding between the couple15.

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BIBLIOGRAPHY       

Modern Hindu Law by Dr.Paras Diwan www.vakilno1.com/legalviews/ www.legalserviceindia.com www.webindia123.com/law/family_law http://www.helplinelaw.com/ www.shareyouressays.com www.lawyersclubindia.com