SYMBIOSIS LAW SCHOOL HYDERABAD

FAMILY LAW 1: TUTORIAL 3

RESEARCH PROJECT:

ANALYSING DIVORCE AND JUDICIAL SEPARATION AS TWO

RELIEFS UNDER HINDU LAW

SUBMITTED TO:

Assistant Prof. Ahmar Afaq

SUBMITTED BY:

Shraddha Baitmangalkar

PRN: 18010324131

BBALLB- Division-D
 TABLE OF CONTENTS
BACKGROUND AND MEANING ............................................................................................... 3

RESEARCH OBJECTIVES ........................................................................................................... 5

RESEARCH QUESTIONS ............................................................................................................ 6

OUTCOME AND NEED ............................................................................................................... 7

JUDICIAL SEPARATION ......................................................................................................... 8

DIVORCE ................................................................................................................................. 10

RIGHTS OF THE PARTIES IN JUDICIAL SEPARATION AND DIVORCE ..................... 11

ALIMONY AND MAINTENANCE .................................................................................... 11

CUSTODY OF CHILDREN ................................................................................................ 11

CONCLUSION ............................................................................................................................. 13
 BACKGROUND AND MEANING
As the term suggests ‘judicial separation’ means separation of the husband and wife living
together. The marriage is not terminated; the husband and wife can choose to live separately.1 It
is an arrangement between the husband and wife where they choose to live separately following
an order of the court2.

This arrangement between the couple is different from them taking a divorce. Divorce is the end
of the relationship and terminates the marriage.3 Both these reliefs were introduced in the Hindu
Marriage Act, 1955. Prior to 1955 there was no relief for the husband or wife to terminate the
marriage because in India marriage is considered to be a bond that is unbreakable. Also, it was
against the customs to break the marriage and live separately.

The main object of the legislation to introduce judicial separation was to give a chance to the
married couple to try and protect and save their marriage. This was done to keep reconciliation
as an option always open to both the parties.4

The concept of Divorce was not prevalent in ancient Hindu law. Even though the Arthasastra has
made some observations on divorce, there were no other scripts or sources that spoke about
divorce.5 Customary Divorce was and is still prevalent within the Hindu law, which was
applicable only to certain castes and communities which were considered the lower rung of the
social hierarchy.6

But after the industrial revolution, globalization and modern advancements marriage under the
Hindu law is a contract between the two parties entered into voluntarily. Once when it was
realized that marriage is a contract, there should be some provision to terminate that contract and
hence divorce came in the Hindu law. To give another chance to the parties of the contract
Judicial separation emerged.7

1
Family law in India;Prof (Dr.) T.V. Subba Rao and Prof. (Dr.) Vijender Kumar;10th edition
2
A Venkata Ramaniah Vs. C.H.Lavanaya
3
Family Law I; Prof Kusum; 3rd edition
4
Law of marriage, Maintenance, Separation and Divorce; S Krishnamurthy Iyer; 5th edition
5
ibid
6
Law of marriage, Maintenance, Separation and Divorce; S Krishnamurthy Iyer; 5th edition
7
Modern Hindu Law; Dr. Paras Diwan;23rd edition
The grounds under which a party could seek judicial separation and divorce were different until
the 1976 amendment to the 1955 act. Now the grounds are same to seek any of the two reliefs.8

8
Family law in India; Prof (Dr.) T.V. Subba Rao and Prof. (Dr.) Vijender Kumar; 10 th edition
 RESEARCH OBJECTIVES
The main purpose of this research is to differentiate between divorce and judicial separation in
the Hindu Law. The other Objectives to conduct this study are as follows:

• Analyzing Judicial Separation and Divorce as two different reliefs.

• To understand the grounds under which one party can go for Judicial Separation
• To understand the similarities in Judicial Separation and Divorce
• To gain Insights into the difference in rights of parties in Judicial Separation and Divorce
with respect to:
1. Maintenance for wife
2. Custody of the child/children
• To understand the different grounds for the wife in Judicial Separation and Divorce

These are the main topics that are going to be covered under this research paper. The resources
and data going to be used for this research project are secondary. These include books, Legal
Databases, Bare Acts, Research papers etc.
 RESEARCH QUESTIONS
The main question of this research paper is with respect to the similarities and differences
between Judicial Separation and Divorce under Hindu Law, which is also the main objective of
this research paper. The other questions of this research paper are as follows:

• What are the reliefs for the parties in a strained marriage?

• What are the essential legal requirements for a party under a marriage to go for Judicial
Separation or Divorce?
• What are the rights of the judicially separated parties or divorced parties?
• Whether there is any separate grounds for Judicial Separation and Divorce
• What are the custody rights and maintenance rights for the parties?
 OUTCOME AND NEED
After the research and study of the topic Analyzing Judicial Separation and Divorce as two
reliefs we would get insight into the difference and similarities between the two. The marriage
under Hindu law will be understood as a civil contract. The difference of the concept of marriage
in ancient Hindu Law and Modern Hindu law will become clearer. The need for Divorce or
Judicial Separation for this civil contract between two parties will be understood.

This study will also address the social stigma attached to divorce or separation of parties from
this relationship of marriages. By the end of this research paper we will understand the
following:

• What is a better relief Judicial Separation or Divorce?

• What are the rights of the parties under Judicial Separation and Divorce?
• Under which law to approach the court and the grounds for the same
• The difference in grounds under Divorce and Judicial Separation
• The difference in grounds for husband and wife

The research questions will be understood and answered by the end of this study. We will also
gain insights into the Hindu Marriage and their customs. The evolving of these two reliefs under
the Hindu law will also be understood. The main aim of this research paper to understand and
analyze the difference between the two reliefs will be understood at the end of this study.
 JUDICIAL SEPARATION
Judicial Separation allows the parties to a marriage to live apart from each other. It is no longer
compulsory or obligatory for the parties to live together. The essentials for judicial separation:

• Existing Marriage between the parties

For the court to grant Judicial Separation, the court must be satisfied that there was an existing
marriage between the two parties.9 In the case of Biswanath vs. Anjali 10 the Calcutta HC held
that a decree for judicial separation cannot lie if the marriage between the parties was Void ab
initio.

• The grounds for Judicial Separation should be in accordance with Sec 13 of the
Hindu Marriage Act, 1955

Judicial Separation is a decree granted by a court of law. If there is no decree by any court and
the parties are living separately it does not amount to Judicial Separation. The same was held in
the case of Darshan Prasad vs. Civil Judge, Gorakhpur11

Any party in a marriage can seek the relief of judicial separation with respect to the grounds
mentioned in Sec 13 of the HMA, 1955 which are as follows:

Any marriage solemnized, whether before or after the commencement of this Act, may, on a
petition presented by either the husband or the wife, be dissolved by a decree of divorce on the
ground that the other party—

(i) Has, after the solemnization of the marriage, had voluntary sexual intercourse with any
person other than his or her spouse; or

(ia) has, after the solemnization of the marriage, treated the petitioner with cruelty; or

(ib) has deserted the petitioner for a continuous period of not less than two years immediately
preceding the presentation of the petition; or

(ii) Has ceased to be a Hindu by conversion to another religion; or

9
Hindu Law ; Sir Dinshaw Fardunji Mulla
10
AIR 1975 Cal 45
11
AIR 1992 SC 967
(iii) Has been incurably of unsound mind, or has been suffering continuously or intermittently
from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably
be expected to live with the respondent.

These are the grounds for both the husband and the wife to approach the court of law for the
relief of judicial separation. The grounds for Judicial separation and Divorce are same after the
1976 Amendment Act.

(2) A wife may also present a petition for the dissolution of her marriage by a decree of divorce
on the ground, —

(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 (78 of
1956), or in a proceeding under section 125 of the Code of Criminal Procedure, 1973 (2 of
1974) [or under the corresponding section 488 of the Code of Criminal Procedure, 1898 (5 of
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 the 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.

These grounds are specifically meant for the wife as a party to attain the relief of judicial
separation from the court of law.
The grounds for Judicial Separation and Divorce is same due to the fact that both these are reliefs
for a strained or unhealthy marriage. The main difference is only that in case of judicial
separation the party might want to cohabit with his/her spouse after a certain period. But in the
case of Divorce mostly the parties do not want to cohabit again and end their relationship.

Due to the same grounds for Judicial Separation and Divorce, the relevance and the main aim for
which Judicial Separation is not being fulfilled. An aggrieved party in a marriage usually takes
the relief of divorce instead of judicial marriage.12 Due to this the concept of unbreakable bond
of the two parties in marriages is coming to an end. It has become a contractual obligation of
both the parties. It is no longer a celestial bond.13

DIVORCE
Dissolution of a marriage by the two parties or any one of the parties is known as divorce.
Divorce is taken by the parties for the purpose of dissolution of marriage. Once it was realized
that Marriage is a civil contract, provision for termination of contract had to be introduced which
is divorce.14 Previously there was only one ground for divorce adultery but with time cruelty and
desertion also became the grounds for divorce.

Divorce in the society is seen as a negative term because marriage is considered to be sacred and
a bond that stays forever. If there is a breakdown of marriage and no party has the interest to
continue the bond then they take the relief of divorce.15

As mentioned above the grounds for both divorce and judicial separation are the same, because
both are intended to dissolve the bond of marriage. The essentials for Divorce and Judicial
separation are the same, there should be an existing marriage between the parties and the grounds
for Divorce must be in consonance with Sec 13 of the Hindu Marriage Act, 1955.

Divorce can be taken by mutual consent or a contested divorce petition can also be filed for. In
case of mutual consent both the parties have agreed to take a dissolve the marriage but in

12
Modern Hindu Law; Dr. U.P.D. Kesari
13
Indian Law of Marriage and Divorce; Kumud Desai
14
Modern Hindu Law, Dr. Paras Diwan
15
Ibid.
contested divorce, one of the parties does not want to dissolve the marriage and is summoned to
the court proceedings.

RIGHTS OF THE PARTIES IN JUDICIAL SEPARATION AND DIVORCE

ALIMONY AND MAINTENANCE

In case of divorce and judicial separation the applicant whoever maybe can claim for alimony
after the dissolution of the marriage. Alimony can be claimed under Sec 25 of the Hindu
Marriage Act 1955. According to this section alimony can be granted only when the decree by
the court has been passed under Sec 10, 11 and 13 of the said act.16 There has to be a decree of
the court under the above mentioned sections for alimony to be granted to the applicant.

Maintenance is the money required by the applicant to maintain his/her life as it was prior to the
dissolution of the marriage. In the case of Shashi shah (Smt) v. Kiran Kumar Shah,17 the court
held that, “The amount of maintenance for wife should be such that she can maintain and keep
herself in the same standard in which she could have lived with her husband. No doubt, the
amount should not be excessive but however, it must be reasonable.” It can be conclusively said
that the amount of maintenance given to the applicant should with respect to the lifestyle prior to
the dissolution of the marriage.

The same is in the case of judicial separation because the husband and wife are living separately
and the applicant will require some amount to maintain him/her which has to be given by the
respondent.

There are certain situations where the court can exercise its jurisdiction and not grant
maintenance to the respondent on the ground that they are earning and are capable to look after
themselves.18

CUSTODY OF CHILDREN
The custody of children can arise in cases of judicial separation or divorce. When the child is
minor and cannot take his/her own decisions, the court decides who the child will stay with.

16
A treatise on Hindu Law, Gopalchandra Shastri
17
(1999) 1 Femi Juris CC 19(All)
18
A treatise on Hindu Law, Gopalchandra Shastri
Custody of children in Hindu marriage act, 1955 is mentioned in Sec 26 of the act which states
as follows,

“In any proceeding under this Act, the court may, from time to time, pass such interim orders
and make such provisions in the decree as it may deem just and proper with respect to the
custody, maintenance and education of minor children, consistently with their wishes, wherever
possible, and may, after the decree, upon application by petition for the purpose, make from time
to time, all such orders and provisions with respect to the custody, maintenance and education of
such children as might have been made by such decree or interim orders in case the proceeding
for obtaining such decree were still pending, and the court may also from time to time revoke,
suspend or vary any such orders and provisions previously made:

[Provided that the application with respect to the maintenance and education of the minor
children, pending the proceeding for obtaining such decree, shall, as far as possible, be disposed
of within sixty days from the date of service of notice on the respondent.]”19

According to this section any proceedings under this act custody of the child can be asked for
from any of the parent. As judicial Separation is also a proceeding under this act, even in case of
judicial separation custody rights can be granted by the court.20

But while granting custody of the child interest and welfare of the child is the only aspect to be
taken into consideration.21 The party who does not get the custody or is neglecting the duty as a
parent has to give maintenance to the parent who has the custody of the child to take care of the
education and maintenance of the child.

After analyzing the two reliefs it can be said that under the Hindu Marriage Act,1955 the rights
under both the reliefs judicial separation and divorce are the same, only the procedural aspects
differ.

19
Section 26 of The Hindu Marriage Act,1955
20
Child Custody Laws in India
21
Kumar V. Jahagirdar v. Chetana K. Ramatheertha, 2001 (2) JCR 290
 CONCLUSION
To conclude this research project it can be said that both the relief’s judicial separation and
divorce are similar in aspects that both lead to dissolution of marriage. The only main difference
is that in judicial separation the parties still have a chance of reconciliation but divorce does not
grant such an option.

One more difference is that judicial separation can be taken immediately after the marriage but
for divorce the parties will have to wait for a period of one year.

Judicial Separation as a relief gives the parties a chance to reconsider their decision and rethink
about the same but once divorce is granted there is no reconciliation. Under the Hindu law
marriage is considered to be an unbreakable bond, in such a culture breaking away from the
marriage will cause harm to honor and reputation of the parties. Even though marriage has
become a civil contract, it is still a sacred bond which should not be broken. Hence, judicial
separation as a relief is encouraged over divorce because it will give the parties a chance to
reconsider their decision and then proceed for divorce if there is no chance for reconciliation.

After the analysis of both the reliefs it can be conclusively said that both the reliefs are equally
helpful to the parties but it the dissolution of the marriage should be dependent upon the
circumstances and situation at that particular time period.