Matrimonial relief of judicial separation under Indian Family Laws


The statutory law of Hindus, Parsis, and Christians recognizes the matrimonial relief of judicial separation. It is also recognized by the Special Marriage Act, 1954. Muslim law does not recognize anything like it. Probably in the case of non-Hindus and non-Muslims, the high courts have inherent jurisdiction to provide the relief. Persons belonging to any community are free to enter into separation agreements under the general law of contract. The grounds on which judicial separation may be granted differ widely from statute to statute. Under the Special Marriage Act, 1954, it may be obtained on any ground on which divorce can be obtained under section 27 as well as on the ground that the respondent has failed to comply with the decree of restitution of conjugal rights. Similarly, under the Parsi Marriage and Divorce Act, 1936, judicial separation may be granted on any ground on which divorce may be obtained as well as on the ground that the defendant has been guilty of such cruelty to him or her or their children, or has used such personal violence, or has behaved in such a way as to render it, in the judgment of the court, improper to compel him or her to live with 'defendant'. Under the Indian Divorce Act, either party may obtain a decree of judicial separation on the ground of 'adultery or cruelty or desertion without reasonable excuse for two years or upwards.'

Under the Hindu Marriage Act, the grounds of judicial separation are given more elaboration. The reason seems to be that the grounds, which are conventionally considered grounds of divorce, are recognized only as grounds of judicial separation. Section 10 lays down six grounds, viz. continuous desertion of at least two years (willful neglect is included in the definition of desertion), cruelty, virulent leprosy of at least one year's duration, venereal disease in a communicable form of at least three years' duration, continuous insanity of at least two years and respondent having' sexual intercourse with any person other than his or her spouse'. The last ground would include adultery as well as non-consensual intercourse. Cruelty has been interpreted considering the wide meaning given in western countries as well as considering Indian conditions. Desertion includes actual, constructive, and willful neglect. Under the Marriage Laws (Amendment) Act 1976, now a party to a marriage may seek judicial separation on any ground on which he or she is entitled to a divorce. Cruelty, desertion, and adultery have now been made grounds of divorce.

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