Judicial Seperation

When living together becomes difficult for a husband and wife, the couple may resort to legal proceedings. The first thought that may arise in minds is Divorce, but it must be noted that the Courts in India aim at attempting to keep the holy matrimony intact by trying to mend the cracks in the marriage.

The Hindu Marriage Act also provides for the provision of Judicial Separation for a married couple. The Judicial Separation is considered as the last leg before the marriage breaks down finally. Thus the court emphasizes upon providing an alternate relief instead of a decree of Divorce.

When Can One File For The Relief Of Judicial Separation?

A Petition under the Section 10 Hindu Marriage Act may be filed praying for a decree of Judicial Separation by the husband of wife relying on any of the grounds specified as grounds of Divorce.

The grounds on which Judicial Separation can be granted are:

  • Adultery;
  • Cruelty;
  • Desertion for a continuous period of more than 2 years;
  • Conversion from Hinduism to any other religion;
  • Suffering from an incurable and virulent form of leprosy;
  • Respondent being of unsound mind which is incurable;
  • Suffering from such a mental disorder that it shall be unreasonable to expect the petitioner to cohabit with the respondent;
  • Suffering from an incurable and virulent form of leprosy;
  • Suffering from a venereal disease which is in a communicable form;
  • The husband is guilty of rape, sodomy or bestiality, after the solemnization of the marriage
  • If the marriage was solemnized before the wife had attained the 15 years of age and she has repudiated the marriage upon becoming of 15 years but before turning 18 years.

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Can Court Grant Judicial Separation On Its Own?

Yes, if in a Divorce Petition, the Court deems fit as per the facts then instead of the Decree of Divorce, which has been originally prayer for, it, can grant the decree of Judicial Separation. If the Court considers it just and reasonable to do so and upon being satisfied with the truth, it may even rescind the decree of Judicial Separation.

What Is The Concept Of Restitution Of Conjugal Rights?

Conjugal Rights refer to the right to stay together as a husband and wife. Thus if either the husband or the wife without reasonable justification, withdraw from the society, meaning that one party is guilty of staying away from the other without any proper reason, the aggrieved party can apply for the restitution of such conjugal rights to the Court of appropriate jurisdiction.

If the Court is satisfied with the facts stated in such petition and believes that there is no legal ground why the relief of Restitution of Conjugal Rights should not be granted, shall grant a Decree of Restitution of Conjugal Rights.

1. Requisites to be fulfilled for Section 9 relief

  • Husband and wife must not be staying together;
  • The withdrawal of the other party from the society of other has no reasonable ground.

2. On what grounds can the petition for Restitution of Conjugal Rights be rejected?

  • If the withdrawal is justified due to circumstances which make it impossible for the respondent to stay together;
  • If the petitioner’s conduct has made it reasonably impossible for the respondent to stay together;
  • If the petitioner has committed any matrimonial misconduct.

3. Burden to prove

  • Primarily, the petitioner has the burden to prove that the respondent is not staying together.
  • Then, the burden of proving that the excuse of withdrawing from the society of the other is reasonable or not shall be on the person who has withdrawn from the society.

How To Apply For Judicial Separation?

The petition for Judicial Separation has to be filed under the Section 10 of the Hindu Marriage Act, 1956. The petition must mention all the relevant facts like:

  • Details of the parties,
  • the date and place of marriage,
  • Rituals followed,
  • Current living status of the parties
  • The grounds being relied upon, and
  • The relief being claimed.

How To Apply For Restitution Of Conjugal Rights?

The petition for Judicial Separation has to be filed under the Section 9 of the Hindu Marriage Act, 1956. The petition shall again mention the details of the parties and other required details but also prove that the respondent has withdrawn from the society of the petitioner without a reasonable cause.

Where To File The Petition Of Judicial Separation Or Restitution Of Conjugal Rights?

The Petition may be filed in the Family Court or in the District Court where:

  • The marriage was solemnized,
  • The wife and husband last resided together, or
  • Either the wife or the husband is residing at the time of filing of the Petition.