Juridicial sepration

What is the ground of divorce in petition?

Hi Smriti,

If your husband has already gone in for a divorce case, then what makes you think he would go in for the lesser remedy of Judicial Seperation. In my view no sane person would do such a thing and it serves no purpose. Further more I would advise you to defend diligently this divorce case, if you don't intend on giving him a divorce that he does not deserve, file an application u/s 24 HMA on the very first hearing itself to stall the matter and get your rightful due as maintenance and litigation expenses even before Divorce petition gets underway.

Good Luck !

Bharat Chugh

(Advocate - Delhi)

@ Smriti,


Good self discovery on your part!


1. Mulla, in his commentary on the Hindu Marriage Act at page 853 of the 12th edition of the Principles of Hindu Law, states the asked matter as;

"At the same time the view seems to have been taken that the injured or innocent spouse who has obtained a decree for judicial separation should have the right to seek dissolution of the marriage by a decree of divorce where the parties have not resumed cohabitation for a period of two years or more after the passing of such decree."

Judicial separation in details:-

S. 10 of The Hindu Marriage Act

[(1) Either party to a marriage, whether solemnized before or after the commencement of this Act, may present a petition praying fr 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 specified in sub-section (2) thereof, as grounds on which a petition for divorce might have been presented.]

(2) Where a decree for judicial separation has been passed, it shall no longer be obligatory for the petitioner to cohabit with the respondent, but the Court may, on the application by petition of either party and on being satisfied of the truth of the statements made in such petition, rescind the decree if it considers it just and reasonable to do so.

The Objects and reasons of Judicial Separation:-

S. 10 deals with judicial separation and the main consequences which flow from a decree for judicial separation. A decree for judicial separation does not have the effect of terminating the marriage.

Some insight into the Joint Committee Report:-
In considering this and the following clauses, the Joint Committee have taken into account the language employed and the scheme adopted in the Special Marriage Act, 1954, recently passed by the Parliament. In view, however, of the fact that Hindu Law has so far recognized polygamy, the Joint Committee feel that the approach to the problems of judicial separation and divorce need not necessarily be the same in both the cases and that it is neither necessary nor desirable in the present case that grounds for judicial separation and grounds for divorce should be identical as in the Special Marriage Act, 1954. Moreover, having regard to the high ideals which the Hindu Community has always lived up to, divorce should not be made easy and the law should be so framed as to provide the maximum opportunities for mutual adjustment. The scheme of this Bill is, therefore, slightly different. Apart from the changes in the language employed, the major changes made in clause 10 are,-

(a) “cruelty” is now a self-contained definition;

(b) One act of infidelity to the marriage tie now furnishes a ground for judicial separation instead of adultery as proposed in the original Bill; and

(c) The definition of “desertion” has been widened so as expressly to include willful neglect of the respondent.

2. Understanding more or less the unfortunate situation you are going through as per your three mails here in the forum my opinion would be to file reply to his divorce not only as wrong and denied but / and in molded wordings make a alternate prayer "grant judicial separation to parties". The reason for this 'counter prayer' is that based on whatever you have mentioned as facts of the matter before us in your various postings it may be difficult for your husband to get divorce on his plain vanilla 'cruelty' allegations grounds that also in a contested divorce suit that he has so far filed. But, the moment there is a 'counter claim' by respondent more so by a 'innocent' wife to the divorce case the ld. Court after going through all the 'material records' may concede to your prayer thus dismissing his.

Another thing in ply is that, Under Sub-section (1) of S. 13 of the Hindu Marriage Act, the husband or the wife can bring a petition on the ground that "the other party" (and these words are important) has not resumed cohabitation for a period of two years after the passing of a decree for "judicial separation" against that party. The words "the other party" in Sub-section (1) and "against that party" in Clause (viii), in my mind, provide a key to the construction of this provision and these clearly exclude the right of one of the spouses, namely, the party against whom the decree has been granted to claim the protection of a divorce Court for a decree for dissolution of marriage that is why I started the reply with para 1.

It is worth an try for two years wait to see some sea change in his attitude towards second matrimony with a girl child out of unfortunate first wedlock of his!

3. No. he cannot file another petition on same cause of action. i.e. he can either pray for divorce on cruelty grounds and or under judicial separation as the language of S. 13 (1) is very clear. The question of second notice on frivolous cause of action serving on you is out of question here.

4. Time wise at least I cannot forecast. It all depends upon load of the Court and adjournments read with either or both parties lawyer getting sick and or riots, natural calamity, ld. PO on leave to typist pool on leave etc. etc. If positive vibes there then everything falls in its place sooner than later.

Now suggested to try sitting with an seasoned Advocate locally and discuss what you read in your thread post as replies.

All the best.

Thanks a lot for giving so much time and for your valuable suggestion , i undesrtood little from your post as it is very legal but surely i will discuss this with my lawyer , i would appreciate if you can tell me the same in normal wording so that i can understand it in better way.

 @ Lady,

If you say to us that your marriage should not break and are positive that all the wild card allegations in your husband’s divorce suit will ultimately be not considered by court and may get dismissed then while submitting written statement (replying) to his divorce suit mention para-wise all allegations are 'wrong and denied’ (that is what you say in your facts before us – right!)  and also add ‘why they are wrong' and under your prayer clause mention "deny divorce to petitioner as respondent does not wish that the marriage of parties should be broken" and / or as alternate prayer from your side mention "grant judicial separation to parties" and also plead via your pleader that you were not the wrong party all these times and why you are as an alternate relief to his divorce suit matter are now pleading for 'judicial separation' instead of divorce in given circumstances. Court considers these matters if well plead.

By following above rabbit in a box position/stand your purpose of marriage not breaking on paper and before eyes of society that both of you keep will be solved (only thing in judicial separation that happens is that parties are disallowed bed and board with each other means cohabitation as husband and wife is not done thing unlike other normal cohabitating couples) and both of you will now get time and space to come back to normal marital track if that is what you see should happen in future i.e. during 'judicial separation' period (you mentioned in one of your replies that I will talk to him / he has such a lovely daighter from his previous marriage - what the daughter will be told how his natural mother and second mother left her for - remember your own wordings in some of the posts before us!!). If such big picture does not come true with all possible social efforts then once court awarded parties ‘judicial separation’ and there are failures in immediate periods convert the 'judicial seperation' into decree in divorce by way of filing proper divorce petition from your side is what I mean by above large technical reply with hint to consult with yoru advocate these possibilities.

Alternately you can not only file your written statement (reply) to his divorce suit matter but can lay counter claim by properly filing a counter petition using “judicial separation” as your relief ground. Both his divorce suit matter and your filed judicial separation suit matter will now run simultaneously in same court. Some ld. brothers donot prefer this route hence above large simple replies as possible follow-up is suggested to you via Igyan route.

Also re-read last but two lines in my earlier reply as follow-up with your advocate. 

Kissi ne kabhi sahi kaha hai "har ache kaam se pahley kutch mitha ho jaye "

Well on that note send 1 Kg. sweets to Admin. of LCi to have given you a platform for sharing free Igyan 

Wow Taj.. you are great, thats a good option if i can work out.... this will give time to both of us to rethink rather then running behind Divorce .. hope with passage of time things will be resolved ... Thanks a lot dear ... thanks