Legal Guide

Separated Marriage- A Step Towards Reevaluation.

by Jui Naniwadekar · 3 min read

Separated Marriage

Introduction

  • In India, marriage is the heavenly union of two people, unique families coming inclusively. It is taken into consideration as one of the essential social establishments. Pious knots are tied through marriage. Hindus considered a bond for eternity. Indeed death can not tear them piecemeal. A man is stated to be deficient without women and vice versa. Marriage is a lifelong trip that thrives on love, commitment, trust, and respect, but identical isn’t the case with each person. 
  • In day-to-day life, issues that occur during the marriage are way beyond our religious solemnities and customs. As we all know, modern problems are best solved with modern solutions. 
  • There are certain legislations incorporated giving rights to parties to reevaluate their decision or to repudiate marriage. If a person isn’t willing to stay in a wedded relationship or abide together, he/she at suitable times can request relief under Section 10 of the Hindu Marriage Act, 1955, by way of Judicial Separation, popularly called separated marriage

What is Separated Marriage

In simple words is an opportunity given to the spouses to introspect into their disturbed married life. The law gives a fair chance to both spouses to rethink the extension of their married relationship and cohabitation before going ahead with finalizing the divorce. Under this decree, both parties live separately for some time while getting adequate space and independence. During this phase, both parties carry the same legal status of being husband and wife and yet, at the same time, live separately.

Grounds for Separation in Marriage

There are different procedures laid down by different personal laws, depending upon the community to which the Petitioners belong.

  • As Per Hindu Law
  1. Adultery [Section 13(1) (i)] – If any of the spouses voluntarily had sexual intercourse after marriage with anyone other than their spouse, the aggrieved party can claim the relief.
  1. Cruelty [Section 13(1) (i-a)] – When the spouse treats their partner with cruelty whether mental or physical. The sufferer can file a petition on the grounds of cruelty.
  1. Desertion [Section 13(1)(i-b)]– In cases where the spouse left the other partner for any reason without informing, for a period not less than 2 years before filing the petition, it gives a right to claim relief.
  1. Conversion/Apostasy [Section 13(1) (ii)] – If any spouse get converted to a religion other than Hindu, then the other spouse can file for separate marriage.
  1. Conversion [Section 13(1) (ii)] – In cases where the spouse gets converted to any other religion, then the other spouse can file for judicial separation.
  1. Unsound mind [Section 13(1) (iii)] – In cases where a spouse is suffering from any mental disease which is difficult to live with for the other spouse. The aggrieved person can claim relief.
  1.  Leprosy [Section 13(1)(iv)]- In cases where a spouse is suffering from any disease like leprosy, which cannot be cured, then the other party can file a petition for judicial separation as it will not be feasible for him/her to waste their own time due to the sufferer.
  1. Venereal Disease [Section 13(1)(v)]- in cases where a spouse has any type of disease which is incurable and also communicable and the spouse does not know about the fact at the time of marriage, then it could be a valid ground for the spouse to file a petition for judicial separation.
  1. Renounced the World [Section 13(1)(vi)]- This term conveys that the person has given up the world called ‘Sanyasa’ by leading to a holy life, then his/her spouse can file for judicial separation.
  1. Civil death/Presumed death [Section 13(1)(vii)]- In cases where a person is not found for seven or more years and their relatives or any other person have not heard from him/her, or it is believed that he/she may be dead. Here, the other spouse can ask for relief.

Additional grounds for her

  • Bigamy [Section 13(2) (i)] – In cases where a husband is remarried while he is already married, and both the wives are live, then both of his wives possess a right to claim for separation in marriage.
  • Rape, sodomy, or Bestiality [Section 13(2) (ii)] – In cases where a husband is guilty of charges like rape, bestiality, or sodomy after the marriage. gives all the right to claim for separated marriage.
  • Repudiation of marriage option of puberty [Section 13(2)(iv)]- If a girl’s marriage has taken place before a girl has attained 15 years of age, then she has a right to claim for judicial separation.

Muslim Law

Muslim personal law does not indulge in provisions such as judicial separation as dealt with in Hindu Marriage Act or Special Marriage Act, but some landmark case laws improved the grounds for dissolution of marriage on the basis of judicial separation u/Section 02 of The Dissolution of Muslim Marriages Act of 1939 as follows,

  1. Whereabouts of the husband are not found for 4 years,
  2. Neglect or failure to maintain wife for 2 years,
  3. Husband is sentenced to imprisonment for a period of 7 years or more,
  4. Failure to perform obligations of marriage for 3 years,
  5. Impotency,
  6. Insane or sufferer  of leprosy or venereal disease,
  7. The wife could repudiate the marriage before 18 years of her age if the marriage solemnized before the age of 15 years,
  8. Cruelty.

Christian Law

Section 22 and Section 23 of the Indian Divorce Act of 1869 allow the Christians to obtain a decree of judicial separation on these grounds-

adultery, 

cruelty, or 

desertion for more than 2 years. 

This decree separates the spouses and disallows them to live together but does not dissolve the marriage in terms of the law.

Parsi Law

Under The Parsi Marriage and Divorce Act 1936, for married and troubled couples, the provisions for relief measures are under Section 34. It can be filed by the Parsi spouse on grounds u/Section 32. These grounds are the same as the Special Marriage Act of 1954 and the Hindu Marriage Act of 1955.

The Procedure regarding Filing Petition for Separated Marriage

Section 10 of the Hindu Marriage Act 1955 provides for Separation in marriage for both the spouse and those who are married under The Hindu Marriage Act of 1955. The aggrieved persons can claim the relief of Separation by way of filing a petition. Once the order is passed, they are not bound and are supposed to cohabit.

The petition, as u/Order VII Rule 1 of the Civil Procedure Code, 1973, must fill in the following details-

  1. The date and place of marriage.
  2. The proof that the person is a Hindu is through an affidavit.
  3. Name, status, and address of the parties,
  4. Name, date of birth, and gender of the child (if there are any).

Conclusion

It’s a legal manner to stay separately while being endured as legally wedded. Marital problems are best treated through distance. This will assist in self-realization and self-analysis and will, in the long run, help recognize the value of companionship. Additionally, there’s always a scope and hope for reconciliation and starting afresh. If the children are involved, then fighting for their custody will not be an issue in this case.

Unlike divorce, it doesn’t position a quit to the relationship as well. People inclined to have separation must go for a legal consultation with their family lawyer for valid, legitimate, and legal advice instead of taking the price of the matters on their own.

Acquiring the decree of judicial separation/Separated marriage or divorce is not an exhausting procedure if laid into the safe hands of your expert divorce lawyer. To know more about the procedure for getting separation or divorce, get online advice.

Jui Naniwadekar

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Jui Naniwadekar

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