One of our client who has approached us seeking legal opinion and advice on the ongoing disturbances in her matrimonial life, asked us a question concerning the status she need to select in the documents while applying for passport in India.
The client was to select one option amongst ‘married’ ‘divorced’ or ‘separated’. Since she was living separately from her husband, for about little over an year, after being driven out of the matrimonial house and was yet to initiated any legal action against her husband, the query was pretty simple yet complex as the terms separation, judicial separation and divorce are used interchangeably corresponding to expression divorce by common population.
As it is of common knowledge that matrimonial disputes occurs mainly due to misunderstanding or temperamental differences between the husband and wife. In the event of onset of any such dispute or difference, certain remedies are provided to the aggrieved party under the Hindu Marriage Act, 1955 (HMA), such as:
- Section 9 provides for the restitution of conjugal rights
- Section 10 talks about judicial separation
- Section 11 and 12 defines void and voidable marriage
- Section 13 provides grounds basis which divorce can be obtained
- Section 13-B is the provision for divorce by mutual consent
Where either party to a marriage has withdrawn from the society of the other without there being any reasonable excuse for doing so, an aggrieved party may seek restitution under Section 9 of HMA and it’s for the party who has so withdrawn to prove that there existed reasonable excuses. Therefore, this relief is available and is utilized if the parties are still desirous to salvage without rounds of allegation and counter allegation. However, if the misunderstandings or differences are such that aggrieved party thinks that dissolution of marriage will be for greater good, then dissolution can be sought either on mutual consent or on the grounds provided for it under Section 13 of HMA.
It is also of common knowledge that in Hindus, the marriage is considered sacred and is a religious sacrament in which a man and women is bond in permanent relationship for physical, social and spiritual purposes of dharma, procreation and sexual pleasure. It certainly isn’t a contract which can be joined and annulled by the consenting parties at will.
Having said so, if aggrieved party is of the view that instead of dissolving the marriage it will be good if a break is taken from the marriage and related responsibilities for some fixed duration of time and then evaluate if the differences and disputes dies a natural death. Such a party can approach the court and seek ‘judicial separation’. It is pertinent to note here that the grounds basis which judicial separation can be sought and is granted are exactly the same on which divorce is sought and can be granted by court. Therefore, it can rightly be said that judicial separation is the first step towards divorce.
Before we discuss the subjected issue further, it is important for you to know that in India issues such as marriage, divorce, maintenance, inheritance and succession, etc., are governed under the personal law. At present, Hindus, Buddhist, Sikhs and Jains are governed by the Hindu Marriage Act, 1955. Muslims are governed by the Dissolution of Muslim Marriage Act, 1939. Parsis are governed by the Parsi Marriage and Divorce Act, 1936. Christians are governed by the Indian Divorce Act, 1869. Also, for inter-caste, inter-religious and civil marriages Special Marriage Act, 1954 is applicable. We do not what to complicate the ongoing discussion by venturing into the domain of who is Hindu and if sects like Punjabis (migrated from Pakistan during partition), etc. are Hindus? Majority of Punjabis in Pakistan follow Islam whereas in India Hinduism, Buddhasim and even Christianity is adopted by them. Their origin is traced as “Aryan-speaking nomadic tribes descended from the mountain passes in the northwest to settle on the plains of Punjab around 1700 BC[1]”. Suffice to say Hon’ble Supreme Court in ‘Sastri Yagnapurushadji[2]’ has attempted to narrate the historical as well as etymological genesis of the word ‘Hindu’ which expression is ‘inclusive’ and not ‘exclusive’. Thus, sect like Punjabi, if follow Hinduism, is governed by HMA.
Now, since the judicial separation is a period which comes before the divorce, the follow-up question is what can be the duration of such separation? The answer is strangely simple, in terms of provisions of HMA, a couple can remain legally separated for as long as they want. It is apparent that getting divorce is only necessary if one party so wishes to remarry. Once an order for judicial separation is passed by the court, it becomes no longer obligatory for the aggrieved party to cohabit with the other party.
It can be summed that judicial separation is not the end of marriage. It’s an honest judicial remedy culled out to strike a balance between the ancient Hindu philosophy that marriage as an union is unbreakable and the modern western thinking of treating marriage akin to a contract. Whereas divorce is a two step process and culminates with the dissolution of the marriage. Therefore, merely by virtue of living separately from ones husband or wife, either on one’s own wisdom or upon being driven out, etc,. the party who has so withdrawn is neither ‘separated’ nor ‘divorced’ but is ‘married’ until and unless an judicial order to the effect is obtained.
[1] https://www.encyclopedia.com/humanities/encyclopedias-almanacs-transcripts-and-maps/punjabis
[2] [1966 SCR (3) 242]