IN THE NAME OF ALLAH ,THE MOST BENEFICIENT

& MERCIFUL

I would like to express my heartfelt to ALLAH and my beloved parents, teachers,

classmates, for their blessing for the completion of my presentation.

As-salaam-o-alekum

JUDICIAL

SEPARATION

BADAR UZ ZAMAN

B.A.LL.B V SEM.

TOPIC

A-NATURE OF MARRIAGE (i) UNDER OLD HINDU LAW (ii) UNDER [H.M.A 1955] B- SEPARATION (I) DIVORCE (II) JUDICIAL SEPARATIONC- STATUARY PROVISION D- JUDICIAL SEPARATION (S.10

H.M.ACT 19955)E- ADDITIONAL GROUND TO WIFE F- EFFECTOF JUDICIAL SEPARATION G- DIFFERENCE BETWEEN JUDICIAL

SEPARATION AND DIVORCE

CONCLUSION

Synopsis

NATURE OF MARRIAGE OLD HINDU LAW

--involves transfer of domination over the damsel from father to husband ,--among Hindus a settled institution with a religious character

Gopal Krishan v. Mithilesh kumari (1979)“sacrament not socio-legal contract....... It is holy union as consortium omntun vitoe”

[HINDU MARRIAGE ACT 1955]

--no longer remains a sacrament- union for spiritual purposes--provision of divorce(s.13)-- sacramental character has been flown away--lack essential requirement of contract

SEPARATION

STATUARY PROVISIONRemedy of divorce and judicial separation was unknown

to shashtric Hindu law (old Hindu law)

Hindu Married Women's Right to Separate Maintenance and Residence Act 1946 gave right to live separate and also claim for maintenance from her husband.(British period)

Finally judicial separation now incorporated in sec. 10 Hindu Marriage Act 1956

JUDICIAL SEPARATION

Section 10(1).- of the Hindu Marriage Act, 1955, “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 might have been presented.”

Meaningwhen they (husband or wife)are under no obligation

to live together or to perform marital obligation for each other, then either party has a right to take decree from court on given ground,

It is temporary suspension of the martial rights.During judicial separation either party to get

maintenance.... But would not acquire the competence to fresh marriage.

Sec. 10 provided that either party may present a petition for praying a judicial separation on any ground specified in S 10 clause 1 and in case of wife also on ground specified in S 10 clause 2.

GROUNDS FOR SEPARATION

UNDER SECTION.-13(1)

1) Adultery::After the solemnization of the marriage, had sexual intercourse with any person other than his or her

spouse.Bhagwan singh v. Amar kaur (AIR 1902)Pre-marital intercourse can not be a ground for

judicial separation.Smt. Pushpa v. Radheshyam (AIR 1972)The general rule is that the circumstantial evidence

should be a such nature which might appear to a man of common prudence.

2) Cruelty::Treated the petitioner with 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

Trimbak narayan bhagwat v. Kumudini bhagwat (AIR 1967)

Mental as well as physical included, motive or intention is not necessary if conduct held to be cruel.

3) Desertion::Deserted, the petitioner for a continuous period of not less

than two years immediately preceding the presentation of the petition

It is difficult to give comprehensive definition of the term.(Adhyatma Bhattar Alwar v. Adhyatma Bhattar sri

Devi)The essential ingredient are to be fulfilled...1- the factum of separation.2- intention to re-cohabitation permanently to an end(animus

deserendi)3- above essential element should be continue during entire

statuary period of not less than 2 yr.

Continued....

The expression “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.

4) Conversion::Where the party Ceased to be a Hindu by converting

to other religionconversion to another religion does not ispo facto.It required to obtain a decree from competent court.Chandra shekhar v. Kuldan velu (1963 S.C

158)Marriage solemnised under any other special statute

are not covered by the provision of this section.

5) Insanity::Where the other party has been of incurable

unsound mind or insanity or mental disorder for a period of not less than two years.

Mental “disorder” means and include mental illness, incomplete growth of mind, psychopathic disorder, or schizophrenia(of lacking

thought), short temper, abnormally aggressive, irresponsible conduct (on part of other party)

6) Leprosy::Where the other party been suffering from a

virulent and an incurable form of leprosy for a period of not less than one year.

Annapuramma v. Pedigari Appa Rao (AIR 1962)

The leprosy which is malignant or venomous can be termed as virulent. Lepromatous leprosy is virulent and incurable.

7) Venereal Disease::Immediately before the presentation of the

petition, party has been suffering from venereal disease in a communicable form, the disease not having been contracted from the petitioner.

English Venereal Disease Act 1917Provided venereal disease are syphilis,

gonorrhoea, soft chancre etc. Venereal disease are such which are communicated by sexual intercourse.(STD’s)

8) Renunciation:: Renunciation of the world: Renounced the world

by entering any religious order. Shitaldas v. Sitaram (AIR 1954 S.C.)It is necessary that all the requirement

ceremonies for entering the religious sect (sanyasi)are proved satisfactorily.

Wearing such clothes [colour, style]or hair style[sheving] or living[pattern , standard] or any other external symbols of sanyasi are not enough.

9) PRESUMED DEATH::Not being heard for seven years: Not been heard of as being alive for a

period of seven years

i) BIAGAMY::When husband married again before the death

of wife or before divorce or decree of judicial separation

II) RAPE, SODOMY, BESTIAlITY

If husband has since the solemnization of marriage, been guilty of rape, or sodomy, or bestiality

III) NON RESUMPTION OF COHABTION AFTER A DECREE OF MAINTENANCE

When case under S.18 of Adoption and Maintenance Act in proceeding under S. 125 of Code of Criminal Procedure 1973, has been passed against husband awarding maintenance to wife and cohabitation between parties has not been resumed for a period of one year or upward

IV) OPTION OF PUBERTYThat her marriage was solemnized before she

attained the age of 15 years and repudiate the marriage after attained the age of 15 year but before the age of 18 year

DIFFERENCE BETWEEN JUDICIAL SEPARATION AND DIVORCES.13 - of the H.M. Act lays down grounds of

divorceS. 13(A)- says that if the Court considers, it may

pass a decree for Judicial separation instead of Divorce . Section 13 B also provides the  circumstances when decree of divorce by mutual consent can be passed .

section 10 provides the same grounds of divorce and of Judicial separation .

There is only material difference in between Divorce and Judicial Separation .

Means that in case of judicial separation the nuptial tie remains intact; it is suspended during the course of judicial separation. But in case of

divorce under section 13 of the Act, the marriage ends completely.

POINTS OF DISTINCTIONS DIVORCE JUDICIAL SEPARATION1-Marital tie comes to an end by divorce

2-mutual rights and obligations of husband and wife ceases to continue .

3- The wife is only entitled to the maintenance and alimony  under section 25 and custody , maintenance and education of the children under section 26 of the Hindu Marriage Act .

4- Divorce gives the right to the parties to remarry .

5-After divorce , the former husband’s intercourse with his former wife , without her consent , is a punishable offence under section 376 of I.P.C .

1- does not put the  marital tie to an end .

2- rights and obligations of husband and wife remain suspended only

3- the parties continue to remain as husband and wife

4-does not give the parties the right to remarry because the marital tie continues .

5- if the cohabitation does not  take place for a period of one year or upwards , either parties may seek for divorce under s.13 (1A)(i )So , cohabitation is expected for reconciliation amongst the parties

  ::CONCLUSION::

In India, as per old Hindu law ,culture, tradition, customs and practices, marriage are considered to be made in heaven. Therefore marriages in India are considered to be the highest form of social relationship. It gives the person who is to live with us for whole life, to share our good and bad times, give us support any time we need and helps in developing our family. We need to respect not only the person but the institution of marriage as well.

But after certain statute and judicial pronouncement old scenario has been totally changed. After 1956, provision of divorced laid down in Hindu Marriage Act and thus the nature of marriage in Hindu law has changed. It provide certain basic right to wife over the husband.

BIBLIOGRAPHY1. Hindu Law – R.K. AGARWAL

24th edition (2014) ALLAHABAD LAW AGENCY

ALLAHABAD (INDIA)

2. Modern Hindu Law– Dr. U.P.D. KESARI 9th edition (2013)

ALLAHABAD LAW PUBLICATION

ALLAHABAD (INDIA

www.indianqanoon.comwww.lawteacher.netwww.legalindia.com

THANK

YOU

PRESENTED BY BADRUZ ZAMAN Vth Semester 13BALLB-26 FA7039SUBMITTED TO,MS. HINA KAUSARASSISTANT PROFESSORA.M.U. CENTRE MURSHDABAD(faculty of law)