The law related to Section 10 of HMA -Judicial Separation

The law related to the judicial separation is based upon the middle path taken by the law and instead of living together in a same household or taking extreme steps of granting divorce, court allows they can live separately in their respective households.

This enables the parties to reflect and resolve the issues.

There are 3 reasons why parties should go for judicial seperation

1. The evidence is short of cruelty.

In the cases of cruelty heavy burden is imposed by the court on the party alleging cruelty. But in Judicial separation the amount of evidence can be short of divorce proceedings.

In Ambujam vs T.S. Ramaswamy on 26 April, 1972
Equivalent citations: AIR 1973 Delhi 46, 8 (1972) DLT 292

 it was held that conduct which falls short of legal cruelty may justify one spouse in leaving another, provided it is of grave and convincing character.

Cruelty by itself is not a ground for judicial separation. It has to be such cruelty as to cause a reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for the petitioner to live with the other party

The ancient Hindu Law was based on the concept of Dharma which included the supremacy of morals and the established code of conduct laid down by the scriptures. With the change in the way of life and the outlook of people the thought of process for bringing about changes in Hindu Law also started. It was realised that the ancient way of life must yield to a more realistic approach in human relationship. This ultimately resulted in codification of various facts of Hindu Law adapted to suit the requirements of the modern way of life. The enactment of the Hindu Marriage Act, 1955 was a result of this change in thinking, to do away with the ancient outmoded concept of marriage and to put this human relationship on a more rational basis. Therefore, in construing the provisions of this law, a practical and human approach has to be adopted and a technical view is not justified. The object of the enactment being to modernise this delicate human relationship and sort out the difficulties, a realistic approach to the problems should be adopted and not an approach which defeats the very purpose of this social legislation. It is on this view of the Statue that the various terms used in the Act have to be construed. Indeed, as it is apparent on a reading of the Explanation to Section 10 of the Act, “desertion” is not to have the meaning attached to it in dictionaries alone but also includes “willful neglect”. Similarly, “cruelty” is to have a wider meaning than mere infliction of physical or mental injury. Desertion does not only mean one party physically leaving the matrimonial home. The meaning given to this word is much wider. It of course implies cesssation of cohabitation but this cessation has to be on account of the party complained against. The husband and wife may live in the same house but there may be such neglect on the part of one of the other that it may amount to desertion. The husband and wife may be living apart and yet there may be no desertion. There has to be what is called animus deserendi or an intention to desert. For example, separation between husband and wife on account of professional or vocational necessity will not be desertion. If a party to the marriage willfully and without the consent of the other party fails or refuses to fulfill marital obligations there is desertion and as we have observed earlier, even if the parties are living under the same roof, circumstances may be created by one spouse for another whereby the former may be compelled to leave the matrimonial home. In such cases it is not the spouse who has been compelled to leave who would be guilty of desertion but the spouse whose action or conduct has resulted in the other leaving the matrimonial home. For example, if a wife separated herself from her husband on account of his adultery with a concubine in his house, it has been held by a Full Bench of the Madras High Court in Rot (Bari) Stree v Rassinga Naik and another, I.L.R. 58 Madras 684,(3) that inasmuch as the conduct of the husband brought about a cessation of co-habitation between himself and his wife, in law he had committed an act of desertion. Thus it is the state of things which really determines whether one spouse has deserted the other. The physical leaving of the matrimonial home or cessation of co-habitation by one party does not necessarily mean that that party is guilty of desertion. The law takes note of not only the physical act of leaving or cessation but also other factors in determining which of the parties is guilty of dereliction of matrimonial duty. Thus desertion may be physical or constructive.

2. The parties do not want divorce

Like in the cases which involves children

In Adhyatma Bhattar Alwar vs Adhyatma Bhattar Sri Devi on 6 November, 2001

respondent had gone to her parents house for birth of
the child, which apparently cannot be construed as an expression of her desire to forsake her husband permanently; but after the birth of her child when attempts were made by the appellant, his parents and relations, she laid down a condition that the appellant should live in a separate

house from his parents taking the plea that her father-in-law had attempted to molest her, which
explanation she signally failed to establish. In the meantime, father of the appellant expired some
time in 1988, putting an end to the so-called reason of misbehavior of her father-in-law. There is
nothing on record that thereafter she expressed her desire to join her husband at the matrimonial
home. It is relevant to state here that the appellant is the only son of his parents and as expected, he
was not willing to establish a separate residence leaving his parents to live alone in their old age. The
cumulative effect of the circumstances and the conduct of the respondent is that she had given
expression of animus deserendi. Thus, the two ingredients of the matrimonial offence of desertion
i.e. separation in fact and animus deserendi have been established by the appellant. The learned trial
Judge, having regard to the facts and circumstances of the case, was right in recording the finding
that the husband had successfully established the case of desertion by the wife and exercising the
discretion vested under Section 13 A of the Act, the learned trial Judge had granted the decree of
judicial separation instead of divorce.

When the evidence of both parties falls short for divorce

In Manisha Tyagi Vs. Deepak Kumar

The Trial Court as well as the
Appellate Court have both concluded that the behaviour of the husband as well as the wife falls short
of the standard required to establish mental cruelty in terms of Section 13(1) (i-a).

the parties had failed to make out a case of divorce against each other. The husband had
accepted these findings. Therefore he was quite content to wait for the statutory period to lapse
before filing the petition for divorce, which he actually did on 9.5.2002. On the basis of the proven
facts the Trial Court was more inclined to believe the wife, whereas the learned Single Judge of the
High court found both the parties to be at fault. Hence the middle path of judicial separation had
been accepted.

Advantages of Judicial Separation

1. Easier to get than Divorce while grounds of divorce still exists.
2. Must be used when evidence is short.
3. Burden of proof is also not very high.
4. Some relief instead of no relief

Nitish Banka

Nitish Banka is an advocate practicing in Supreme Court of India and can be reached at [email protected] or 9891549997