About this topic
Judicial separation is a matrimonial remedy under the Hindu Marriage Act, 1955. The topic covers what judicial separation is and how it differs from divorce, the remedy under Section 10, the grounds borrowed from Section 13(1) and Section 13(2), the court's power under Section 13A to grant judicial separation in place of divorce, the effect and rescission of the decree, divorce after the decree under Section 13(1A), and the Supreme Court's ruling in Hirachand Srinivas Managaonkar v. Sunanda on Section 23.
Three problems to keep in mind
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- A woman has been married for only five months. Her husband has turned violent, and she wants the court's protection to live away from him. Must she wait for her first wedding anniversary before she can go to court?
- A husband asks for divorce because his wife has renounced the world and entered a religious order. Can the judge say, "I will not grant divorce, I will grant judicial separation instead"?
- A decree of judicial separation was passed against a husband. Can he now ask for divorce? And if he can ask, will he always get it?
The answers are worked out in the section "Answers to the three problems" below.
Judicial separation and divorce
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Divorce is a full stop: it ends the sentence of the marriage. Judicial separation is only a comma: the sentence continues, but the law allows a pause.
Under a decree of judicial separation the marriage remains legally alive, and the husband and wife remain husband and wife. The decree only puts certain duties of married life on hold, above all the duty to live together (cohabitation).
Consequences of the marriage remaining alive
- No remarriage: neither spouse can marry anyone else.
- Second marriage void: if either of them does marry again, the second marriage is void. Section 5 requires that "neither party has a spouse living at the time of the marriage", and Sections 11 and 17 declare a marriage in breach of this condition void.
- Bigamy: the person who marries again may also be punished for bigamy under Section 82(1) of the B.N.S., if the second marriage was duly solemnised.
The decree of separation is no defence to bigamy
- The first exception in Section 82 of the B.N.S. protects a person whose earlier marriage has been declared void by a court. A decree of separation does no such thing.
- The second exception covers a person whose spouse has been continually absent for seven years and not heard of as alive within that time. Even then, the real facts must be told to the new partner before the marriage.
| Point | Divorce | Judicial separation |
|---|---|---|
| Picture | A full stop | A comma |
| Effect on the marriage | Ends the marriage | Marriage remains legally alive; the parties remain husband and wife |
| What it does | Dissolves the marriage tie | Puts certain duties of married life on hold, above all the duty to cohabit |
| Grounds | Section 13(1); for a wife, also Section 13(2) | The same grounds, borrowed through Section 10(1) |
| One-year bar under Section 14 | Applies | Does not apply |
Section 10(1): the remedy of judicial separation
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Section 10(1) of the Hindu Marriage Act, 1955 provides:
"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."
Three things to notice in Section 10(1)
- "Either party": the husband and the wife both have this remedy.
- "Whether solemnized before or after the commencement of this Act": even a very old marriage is covered.
- "As grounds on which a petition for divorce might have been presented": judicial separation has no separate list of grounds of its own. It borrows the grounds of divorce.
| List | Provision | Available to |
|---|---|---|
| Common list | Section 13(1) | Both spouses |
| Extra list | Section 13(2) | Only the wife |
The exact match between the grounds of judicial separation and the grounds of divorce dates from the Marriage Laws (Amendment) Act, 1976, which rewrote Section 10(1).
Common grounds under Section 13(1)
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To remember the common list easily, its clauses can be arranged into four families: conduct, health, faith and silence.
| Family | Clause of Section 13(1) | Ground |
|---|---|---|
| Conduct | (i) | Voluntary sexual intercourse with a person other than the spouse |
| Conduct | (ia) | Cruelty |
| Conduct | (ib) | Desertion for a continuous period of not less than two years |
| Health | (iii) | Incurable unsoundness of mind or mental disorder |
| Health | (v) | Venereal disease in a communicable form |
| Faith | (ii) | Ceasing to be a Hindu by conversion to another religion |
| Faith | (vi) | Renouncing the world by entering a religious order |
| Silence | (vii) | Not heard of as being alive for seven years or more |
The conduct family
The conduct family has three grounds.
Voluntary sexual intercourse outside marriage: Section 13(1)(i)
The other party "has, after the solemnisation of the marriage, had voluntary sexual intercourse with any person other than his or her spouse".
Cruelty: Section 13(1)(ia)
The other party "has, after the solemnisation of the marriage, treated the petitioner with cruelty".
- The Act does not define cruelty.
- Courts recognise both physical and mental cruelty.
Desertion: Section 13(1)(ib)
The other party "has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition".
The Explanation to this sub-section says that 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 wilful neglect of the petitioner by the other party to the marriage".
So desertion is not only about walking out of the house. Wilful neglect is covered too.
A husband moves to another city. Then, without reasonable cause and against his wife's wish, he cuts off all contact and support for over two years. This is desertion in the form of wilful neglect.
To find desertion, courts look for two things: (1) the fact of separation, and (2) an intention to bring cohabitation permanently to an end.
The health family
Unsoundness of mind and mental disorder: Section 13(1)(iii)
The other party "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".
The Explanation to this clause defines two terms:
- "Mental disorder" means "mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia".
- "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 or is susceptible to medical treatment".
For mental disorder, the law looks at its kind and extent, not merely at its name. The test is whether the petitioner cannot reasonably be expected to live with the respondent.
Venereal disease: Section 13(1)(v)
The other party "has been suffering from venereal disease in a communicable form".
Leprosy: former Section 13(1)(iv), now omitted
Clause (iv) once covered "a virulent and incurable form of leprosy". The Personal Laws (Amendment) Act, 2019 omitted it, to end discrimination against persons affected by a disease that is now curable.
The faith family
The faith family has two grounds.
- Conversion, Section 13(1)(ii): the other party "has ceased to be a Hindu by conversion to another religion".
- Renunciation, Section 13(1)(vi): the other party "has renounced the world by entering any religious order".
The silence family
The silence family has one ground.
- Presumed death, Section 13(1)(vii): 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 it, had that party been alive".
Additional grounds for the wife under Section 13(2)
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Section 13(2) is the wife's extra list. It has four clauses, and through Section 10(1) each of them is also a ground for judicial separation.
Clause (i): pre-Act polygamous marriage
This clause applies "in the case of any marriage solemnised before the commencement of this Act", where "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 solemnisation of the marriage of the petitioner".
The proviso adds that "in either case the other wife is alive at the time of the presentation of the petition".
- The Act came into force on 18 May 1955, so this clause deals only with polygamous marriages from before that date.
- For later marriages, a second marriage during the lifetime of a spouse is void and punishable as bigamy.
Clause (ii): rape, sodomy or bestiality
This clause applies where "the husband has, since the solemnisation of the marriage, been guilty of rape, sodomy or bestiality".
Clause (iii): no cohabitation for one year after a maintenance decree or order
This clause is linked to maintenance. It applies where, in a suit under Section 18 of the Hindu Adoptions and Maintenance Act, 1956, or in a maintenance proceeding under the criminal procedure law (today Section 144 of the B.N.S.S.), "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".
- Orders made under the earlier criminal procedure codes count as well.
A wife living separately wins a maintenance order in March. If a full year passes after that order and the couple never lives together again, this ground becomes available to her.
Clause (iv): option of puberty
This clause applies where "her marriage, whether consummated or not, was solemnised 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".
- This is known as the option of puberty.
- The Explanation says this clause "applies whether the marriage was solemnised before or after the commencement of the Marriage Laws (Amendment) Act, 1976".
Option of puberty: (1) the marriage was solemnised before the wife turned 15; (2) she repudiated it after turning 15 but before turning 18; (3) it does not matter whether the marriage was consummated.
Court's alternative relief under Section 13A
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Section 13A deals with a spouse who asks for divorce where the judge feels the marriage still has a chance. It provides:
"In any proceeding under this Act, on a petition for dissolution of marriage by a decree of divorce, except in so far as the petition is founded on the grounds mentioned in clauses (ii), (vi) and (vii) of sub-section (1) of Section 13, the court may, if it considers it just so to do having regard to the circumstances of the case, pass instead a decree for judicial separation."
Clauses (ii) and (vi) are the faith family, and clause (vii) is the silence family. So the rule becomes easy to apply.
| Divorce petition founded on | Can the court pass a decree of judicial separation instead? |
|---|---|
| Conduct grounds: Section 13(1)(i), (ia), (ib) | Yes, if it considers it just |
| Health grounds: Section 13(1)(iii), (v) | Yes, if it considers it just |
| The wife's special grounds: Section 13(2) | Yes, if it considers it just |
| Faith grounds: Section 13(1)(ii), (vi) | No |
| Silence ground: Section 13(1)(vii) | No |
In short, when divorce is sought on conduct, on health or on one of the wife's special grounds, the court may turn the full stop into a comma. When divorce rests on faith or silence, it cannot.
Reason for the exception: where a spouse has changed religion, renounced worldly life, or may not even be alive, a pause for reconciliation would serve little purpose.
Two different rules are often mixed up. The exception in Section 13A limits only the court's power to substitute one relief for another. It does not cut down Section 10. A spouse who directly asks for judicial separation may rely on any ground in the common list, because Section 10 refers to the whole of Section 13(1).
| Point | Direct petition under Section 10(1) | Substitution under Section 13A |
|---|---|---|
| Who asks for judicial separation | The spouse, directly | The spouse asks for divorce; the court passes judicial separation instead |
| Grounds available | Any ground in Section 13(1), and for a wife also Section 13(2) | Not where the divorce petition is founded on Section 13(1)(ii), (vi) or (vii) |
Effect and rescission of the decree: Section 10(2)
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Section 10(2) provides:
"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."
Effect of the decree
- It is no longer obligatory for the petitioner to cohabit with the respondent.
- The relief from cohabitation is given to the petitioner, that is, the spouse who obtained the decree.
Rescission of the decree
To rescind means to cancel. The decree is not a permanent wall. If the couple reconciles, either of them may ask the court to cancel it, and the suspended rights of married life return. The court may rescind the decree:
- on the application by petition of either party;
- on being satisfied of the truth of the statements made in that petition; and
- if it considers it just and reasonable to do so.
Divorce after judicial separation or a restitution decree: Section 13(1A)
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If the pause never leads to reconciliation, Section 13(1A) provides the exit door. It says that "either party to a marriage, whether solemnised before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground":
- "that there has been no resumption of cohabitation as between the parties to the marriage for a period of one year or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties"; or
- "that there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties".
How Section 13(1A) developed
- Originally: only the spouse who had obtained the decree could use this route.
- Amendment of 1964: the route was opened to either party.
- Amendment of 1976: the period was cut from two years to one year.
This raises a question: can a spouse at fault simply wait for one year and walk away with a divorce? The Supreme Court answered it in Hirachand Srinivas Managaonkar v. Sunanda.
Hirachand Srinivas Managaonkar v. Sunanda and Section 23
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Facts
- The wife, Sunanda, obtained a decree of judicial separation on the ground of her husband's adultery.
- The High Court of Karnataka passed the decree in January 1981 and ordered the husband to pay Rs. 100 a month for the wife and Rs. 75 a month for their daughter.
- He paid nothing, and he went on living with the other woman.
- In September 1983, he filed for divorce under Section 13(1A), because more than a year had passed without cohabitation.
- The High Court refused, and he appealed to the Supreme Court.
Arguments for the husband
- The only condition in Section 13(1A) is one year without cohabitation, so Section 23 had no role to play.
- Unpaid maintenance could simply be recovered by executing the maintenance order.
Issue
Whether the court could still refuse divorce under Section 13(1A) because of the petitioner's own conduct.
Section 23
Section 23 requires the court, "in any proceeding under this Act, whether defended or not", to be satisfied, among other things, that the petitioner "is not in any way taking advantage of his or her own wrong or disability for the purpose of such relief".
Decision
Justice D. P. Mohapatra, writing for a two-judge bench with Justice Doraiswamy Raju, dismissed the appeal. The case was decided on 20 March 2001. The Court held:
- Section 13(1A) only enables either party to present a petition. It creates no vested right to a decree, because Section 23 governs every proceeding under the Act.
- A decree of judicial separation does not sever or dissolve the marriage tie. It suspends certain mutual rights and obligations and gives the spouses a chance at reconciliation, and both were expected to make sincere efforts.
- By refusing even the small maintenance, and by continuing his adulterous life, the husband had committed a wrong. He could not take advantage of that wrong to obtain a divorce.
Hirachand Srinivas Managaonkar v. Sunanda (2001): the wife obtained judicial separation on the ground of the husband's adultery; the husband paid none of the maintenance ordered, continued living with the other woman, and after more than a year without cohabitation sought divorce under Section 13(1A). Held: appeal dismissed; Section 13(1A) only enables a party to petition and gives no vested right to a decree, since Section 23 governs every proceeding under the Act; the husband could not take advantage of his own wrong. Principle: the exit door after judicial separation is open to both spouses, but no spouse can use it to profit from his or her own wrong.
Section 13(1A) gives either party the right to present a petition, not an automatic right to a decree. Every petition remains subject to Section 23, so a spouse who is taking advantage of his or her own wrong will be refused divorce.
Answers to the three problems
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Problem 1: the wife married for five months
Section 14 bars a divorce petition within one year of marriage, unless the court gives leave in a case of exceptional hardship to the petitioner or exceptional depravity on the part of the respondent. That bar speaks only of divorce. It does not touch judicial separation. So she may file for judicial separation at once, on the ground of cruelty.
Problem 2: the wife who entered a religious order
The husband's petition rests on Section 13(1)(vi), a ground from the faith family. Section 13A does not allow the court to substitute judicial separation in such a case, so the court must decide the divorce petition itself.
Problem 3: the husband against whom the decree was passed
Yes, he may ask for divorce once a year has passed without cohabitation, because Section 13(1A) says "either party". But he will not get it automatically. As Hirachand Srinivas Managaonkar v. Sunanda shows, the court will refuse him if he is taking advantage of his own wrong.
The one-year bar in Section 14 applies only to a divorce petition. It does not touch judicial separation, so a petition for judicial separation need not wait for the first year of marriage to pass.
Quick revision
- Judicial separation is a comma, not a full stop: the marriage remains alive.
- It pauses the marriage and gives the spouses a real chance to rebuild it.
- If that chance fails, it opens a door to divorce under Section 13(1A).
- No spouse may walk through that door by profiting from his or her own wrong (Section 23; Hirachand Srinivas Managaonkar v. Sunanda).
