The concept of marriage is to establish a relation between husband and wife. According to Hindu mythology, marriage is a sacred form of religious ties which cannot be broken. According to Smritikar’s, death cannot break the relationship between the husband and wife.
There are several definitions to Marriage given by eminent persons-
Edward Westermarck in his “History of Human Marriage” defines marriage as “the more or less durable connection between male and female lasting beyond the mere act of propagation till after the birth of offspring.”
The Right to marry is a fundamental right covered under Article 21 of the Constitution of India which states that no person shall be deprived of his life or personal liberty except according to the procedure established by law.
Under Section 12 of the Hindu Marriage Act, it is stated that a marriage is voidable if either party is impotent or unfit for procreation of children. The specific conditions under which a marriage becomes voidable are enlisted under Section 5(ii) of the Hindu Marriage Act, 1955 which includes:
- Either party gives consent in the form of an unsound mind at the time of marriage.
- Capable of giving a valid consent as such unfit for the procreation of the child while he/she has been suffering from a mental disorder.
- Either party is subjected to the habitual attack of mental disorder.
Section 5 of the Hindu Marriage Act, 1955 states that a marriage may be considered valid if the following conditions are satisfied:
- Either party shouldn’t have any other living spouse at the time of the marriage.
- Neither party is incapable of giving valid consent. The consent would be valid only when the parties are of sound mind at the time of giving consent.
- Neither party has been subject to the habitual attacks of insanity.
- The age of the bridegroom should be 21 years and the age of the bride should be 18.
- Either party should not fall within the degree of prohibited relationship which is provided under Section 3(g) of the Hindu Marriage Act, 1955.
- There should not be a Sapinda relationship between the spouses.
Concept of Judicial Separation
Judicial Separation is a medium given by law to afford some time to both husband and wife for examining the misunderstanding between them. Law gives a chance to both the husband and the wife to think about the continuance of their relationship status by granting them the right to live separately. Thereby allowing them some space and independence in their lives to decide their future path. It is the last remedy available to both spouses before the divorce. Judicial separation is a temporary suspension of martial rights between the spouses.
Section 10(1) of the Hindu Marriage Act provides that either party to a Marriage may present a petition praying for a decree of judicial separation on any of the grounds specified in Section 13(1). Further, this section also provides additional grounds to wife beside the abovementioned in Section 13(2) of the Act.
Thus, under Section 10 of the Hindu Marriage Act, the grounds of Judicial separation are follows-
1. Adultery (Section 13 (1) (i))
It means where any of the spouses voluntarily had sexual intercourse with any other person. Here the intercourse should take place after the marriage. Even a single act of adultery is considered sufficient for filing the petition of judicial separation.
Case Law: Revathi vs. Union of India and Ors
In this case, the Court held that Section 497 of IPC is prepared such that a husband cannot prosecute the wife for defiling the sanctity of the married tie by the charge of adultery. The law does not permit the husband of the offending wife to prosecute his wife. The wife also is not permitted to prosecute the offending husband for being disloyal to her. Therefore, both the husband and wife have no right to strike at each other with the weapon of criminal law.
2. Cruelty (Section (13) (1) (ia))
When the spouse treats his/her partner with cruelty or inflicts any mental or physical pain after the marriage. The sufferer can file a petition on the grounds of cruelty.
Case Law: Shyamsundar v. Santadevi
In this case, after the marriage, the wife was badly harmed by her husband’s relatives while the husband stood idly, taking no steps to protect his wife. The Court held that the intentional neglect to protect one’s wife amounts to cruelty on the husband’s part.
3. Desertion (Section 13(1)(ib))
In this section, it is stated that if the spouse left the other spouse for any reason without informing him/her for a period not less than 2 years before filing the petition by another spouse, desertion gives a right to claim relief of judicial separation to the aggrieved party.
Case Law: Guru Bachan Kaur v. Preetam Singh
In this case, the husband filed a petition for divorce after 7 years of declared desertion and never understood the problems of the wife who was also a working woman. The wife was, however, willing to live with her husband at her house in the place of her service. The High Court held that there is nothing like mutual desertion and that one of the parties has to be guilty of desertion.
4. Conversion (Section 13(1) (ii))
If any spouse gets converted into any other religion other than Hinduism, the other spouse can file for judicial separation.
Case Law: Durga Prasad Rao v. Sudarsanaswami
In this case, it was observed that in every conversion case, formal rejection of religion or operation of the sacrificial ceremony is not essential. Therefore, in the case of conversion, the question of fact arose for the first time.
5. Unsound mind (Section 13(1) (iii))
When any spouse in a marriage is suffering from any mental disease which makes it difficult for the other spouse to live with the sufferer. The other spouse can claim for the relief of judicial separation.
To get relief on this ground the petitioner has to prove that,
- the respondent has been incurable of unsound mind or, has been suffering continuously from a mental disorder and
- the nature and degree of the disease are such that the petitioner cannot reasonably be expected to live with the respondent.
The term ‘Mental Disorder’ means ‘mental illnesses or any other disorder or disability of mind, and is inclusive of schizophrenia. Further, the expression psychopathic disorder means a persistent disorder or disability of mind which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party, whether or not it requires or is susceptible to medical treatment.’
Case Law: Anima Roy v. Prabadh Mohan Ray
In this case, the respondent was found suffering from an abnormal disease after two months of marriage. The doctor who checked the respondent could not find the particular time of the start of the illness. Therefore, it was held that disease was not proven at the time of marriage.
6. Leprosy (Section 13(1) (iv))
If any spouse is suffering from any disease like leprosy, which cannot be recovered from, the other party can file a petition for judicial separation because he/she cannot waste their own time due to the sufferer.
Illustration: ‘A’ is a sufferer of an abnormal disease and ‘B’ is the wife of ‘A’. ‘A’ is suffering from a disease that is incurable and the doctor also cannot understand the disease. In this case, ‘B’ can file a petition for judicial separation if she doesn’t want to continue living with her husband.
7. Venereal Disease (Section 13(1) (v))
If any party to a marriage or a spouse has any type of disease which is incurable and communicable and the spouse does not know about the fact at the time of marriage, then it could be a valid ground for the spouse to file a petition for judicial separation.
Illustration: ‘A’ is suffering from an abnormal disease that is spread by communication. The disease is irrevocable. In this case, ‘B’ the wife of ‘A’ can file a petition for the judicial separation in good faith for the future of the two children.
8. Renunciation from the World (Section 13(1) (vi))
In Hindu law, the phrase “by renouncing the world” means embracing of “Sannyasa”. Renunciation from the world conveys that the person has given up the world and leads a holy life. He is considered a civil dead. If a spouse renounces the world to live a holy life, his/her partner can file for judicial separation.
9. Death (Section 13(1)(vii))
When a person is not found for 7 or more years and their relatives or any other person have not heard from him/her or it is believed that he/she may be dead. In such circumstances, the other spouse can file for judicial separation.
Illustration– ‘A’ and ‘B’ had been husband and wife for 5 years and suddenly the husband disappeared for about 8 years. ‘B’ as his wife did her best to find her husband in these 8 years but she could not. Then, ‘B’ can file for judicial separation.
Other Grounds for the Wife to Claim Justice
Bigamy (Section 13(2)(i))
It means if the husband is remarried while he is already married, both of his wives have a right to file petitions claiming for judicial separation provided that, the other wife is also alive at the time of filing.
Illustration– ‘A’ and ‘B’ have been husband and wife for 5 years and they are happy with their family. Suddenly ‘A’ remarried another woman ‘C’ without the consent of his 1st wife ‘B.’ ‘C’ also did not have any idea that ‘A’ was married earlier. On getting to know about this, ‘B’ is entitled to file a petition for judicial separation.
Rape, Sodomy, or Bestiality (Section 13(2) (ii))
The wife has a right to file a petition for judicial separation if her husband is guilty of charges like rape, bestiality, or sodomy after the marriage.
Illustration– ‘A’ and ‘B’ have been husband and wife for 3 years. if the husband ‘A’ raped any other woman and he is found guilty for that, then, in this case, the wife ‘B’ can file a petition for judicial separation.
Section 10 of the Hindu Marriage Act does not provide any time limit regarding how long judicial separation can last. However, Section 13 of the Act provides that if there is no resumption of cohabitation between the parties after one year of the passing of the decree of judicial separation, the parties are entitled to get a divorce on this ground itself. But divorce on this ground is given only after the expiration of 1 year and not earlier. It is because one year is a long period and in that time the couples get enough time to arrive at a particular decision about the continuance of their marriage. Hence, Judicial Separation is a process wherein the court provides a final turn to a couple seeking a divorce to overcome their misunderstandings and solve the disputes concerning the continuance of their marriage.
-  C.N. Shankar Rao, Sociology, Principles of Sociology with an Introduction to Social Thought p.327 (6h ed. 2007).
-  Article 21 of the Constitution of India.
-  Kusum Family Law
-  Ibid.
-  https://indiankanoon.org/doc/1003029/
-  Modern Hindu Law by Dr. Paras Divan.
-  https://indiankanoon.org/doc/921415/
-  https://indiankanoon.org/doc/498122/
-  https://indiankanoon.org/doc/647150/
-  AIR 1940 Mad 513.
-  https://indiankanoon.org/doc/572086/