What Is The Scope Of Judicial Separation & Divorce Under Hindu Marriage Act, 1955? Delhi High Court Explains

The Delhi High Court has explained the scope of Judicial Separation and Divorce under the Hindu Marriage Act, 1955. A division bench comprising of Justice Vipin Sanghi and Justice Jasmeet Singh observed that the scope of the two concepts is qualitatively different and that Judicial separation is a completely different relief that the aggrieved spouse may seek against the other, under sec. 10 of the Act. "Thus, the aggrieved spouse may, instead of seeking the relief of divorce, seek a decree of judicial separation on the same grounds on which he/she may seek divorce. The law gives an option to the aggrieved spouse/petitioner to seek either of the two reliefs," the Court said. Importantly, the Court made the following observations:- While judicial separation does not end the matrimonial relationship and the marriage is preserved – after a declaration is made establishing the matrimonial misconduct by the other spouse, and it entitles the aggrieved spouse/petitioner to deny conjugal relationships to the other spouse/respondent, a decree of Divorce puts an end to the jural relationship of marriage between the parties, thus liberating them from their marital bond. - Whereas a decree of judicial separation can be rescinded by the same court; a decree of divorce can be reversed only by a judicial order: either in review, or in appeal. If it is passed ex parte, it may be recalled on an application being made for that purpose.- Thus, when a decree of judicial separation is passed, the aggrieved spouse is no longer bound to cohabitate with the other, even though, the matrimonial bond continues to subsist. The parties cannot remarry during the period of judicial separation, since the status of marriage subsists. - On the other hand, the parties cease to remain husband and wife, once a decree of divorce is granted, and the parties are free to remarry once the statutory period of appeal expires, and there is no restraint order passed by a competent court against remarriage.- Judicial separation and divorce are completely different reliefs– granted on the same grounds–as contained in Section 13 (1), and in the case of a wife, also on any of the grounds specified in sub-Section (2) of Section 13 of the Hindu Marriage Act,1955.The Court was dealing with an appeal filed by the husband challenging the impugned judgment passed by the Family Court which granted a relief of Judicial Separation, instead of the relief of divorce, as had been sought by the husband. On the other hand, another appeal was filed by the respondent wife challenging the findings returned by the Family Court.The appellant husband had challenged the said judgment on the ground that while he had the option to choose one or the other relief i.e. judicial separation, or divorce and had chosen the relief of divorce, the same could not have been substituted by the Family Court, on its own, as they are both qualitatively different reliefs, having completely different ramifications in law and different consequences for the future lives of the parties.It was also his case that the parties had been living separately since 2009 , for a period of more than 12 years, and hence the bond and the golden thread of matrimony between them had been severely destroyed beyond repair.It was also argued that the marriage between the parties was dead emotionally and practically, and there was no chance of the parties reuniting and cohabitating together, and thus the continuance of such a marriage would, in itself, amounted to cruelty to both the parties.Looking at the facts of the case, the Court observed thus:"The respondent's attitude, reluctance and obstinacy to join the appellant in the matrimonial home, despite his, his relatives and friends' effort to bring her back - also amount to cruelty. The respondent-wife seemingly left her matrimonial home for no reason; levelled various false and serious allegations against the appellant and her in-laws, and; refused to cohabitate or compromise with appellant. Such indifference on the part of the respondent would have caused substantial anguish and agony to the appellant."The Court took note of the fact that despite the decree of judicial separation, the respondent-wife never attempted to re-join the company of her husband, even temporarily. It also noted that the respondent-wife, in the impugned judgment, was asked to give her marriage another chance, and think independently of her family members. However, there was no positive move on the part of the respondent."The appellant husband did all that he could, to cohabitate with his wife. However, the respondent-wife refused to cohabitate with him, and made false allegations of dowry demand without any proof whatsoever, and left the matrimonial home without any reason and refused to return after that. Thus, it is evident to us, that she perpetrated mental cruelty upon the appellant, and that nothing remains in this marriage," it said.The Court was also of the view that the approach of ...

What Is The Scope Of Judicial Separation & Divorce Under Hindu Marriage Act, 1955? Delhi High Court Explains

Nupur Thapliyal

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