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- Whereas a decree of judicial separation can be rescinded by the same court; a decree of divorce can be reversed only by a judicial order: either in review, or in appeal.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 the Family Court in ordering judicial separation, instead of Divorce was faulty.

"What the Family Court failed to appreciate is that, firstly, it is for the petitioner- who approaches the Family Court, to decide whether he/she wishes to obtain the relief of divorce, or of judicial separation. It is not for the Court to decide to substitute the relief sought by the petitioner - from divorce to judicial separation, or vice versa. If the petitioner is able to establish the ground to seek one or the other of these reliefs, the Family Court cannot decide for the petitioner, that it is better for him/her, or the other/respondent spouse, to accept the relief that he/ she has not sought in his/ her petition," the Court said.

The Court opined that the Family Court could not have done the same, for the simple reason, that the petitioner before it had not sought that relief. It further observed that the Family Court cannot grant a relief, the statutory grounds for seeking which, are not established, merely because it feels that that would be "good" for the parties

"The powers of the Family Court to change the nature of the relief sought is absent. The Family Court cannot be heard to tell the petitioner before it, what is "good" for him/her. It may render its advice to the parties when the matter is pending before it, but when it comes to adjudication, the Family Court is bound to bear in mind the relief sought by the petitioner. If the petitioner has established the grounds for seeking the relief as sought, he/she should be granted the same. If not, he/she should be denied the relief sought. Conversely, the Family Court cannot grant a relief, the statutory grounds for seeking which, are not established, merely because it feels that that would be "good" for the parties," the Court observed.

The Court also said that the Family Court was swayed by the appellant's statement that he was willing to resume cohabitation with the respondent when the matter was being heard by the Family Court. However, the respondent did not respond positively, and the appellant never prayed to the Family Court to amend his prayer to seek a decree of Judicial Separation.

"The Family Court should have realised, that if the respondent has been unable to come out of the influence of her family members for the last 13 years, there is very little likelihood of her doing so in the near future. Moreover, the appellant could not have been asked to keep waiting, and to put his life on hold, in the hope that the respondent would change her ways – after 13 long years, and show her willingness to resume cohabitation with the appellant. The judgment of the Family Court is seemingly based more on optimism and hope, rather than the actual factual matrix of the case," the Court said.

The Court therefore held that the relief of Divorce could not have been denied to the appellant husband once the ground of cruelty under Section 13 (1) (ia) was held to have been established. The Court noted that the parties lived together only for 3 years, and had been living separately for more than 12 years.

"The period of separation has left the relationship between the parties beyond repair. The adamance of the respondent to refuse to cohabitate with the appellant over the last 12 years shows us that there is nothing remaining in this marriage, for either party," the Court said.

Accordingly, the Court set aside aside the judgement passed by the Family Court which granted a decree of Judicial Separation to the appellant husband and found the wife guilty of cruelty under Section 13 (1)(ia) of the Hindu Marriage Act, 1955.

It was of the view that the Family Court erred in not granting the decree of divorce to the husband and, instead, granted a decree of Judicial Separation to him.

"In this view of this matter, we allow the appeal of the appellant- husband i.e. MAT. APP. (F.C.) 213/2018 and grant a decree of divorce between the appellant and the respondent. Their marriage stands dissolved forthwith. The appeal preferred by the respondent- wife i.e. MAT. APP. (F.C.) 231/2018 is dismissed," the Court said.

Case Title: VINAY KHURANA v. SHWETA KHURANA

Citation: 2022 LiveLaw (Del) 134

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