COURT MAY RESCIND THE DECREE

Where a decree for judicial separation has been passed, it shall no longer be obligatory for the
petitioner to cohabit with respondent but the court may on application by petition of 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 (Section 10 (2)). The power to rescind though
available under Section 10 (2), must be exercised with circumspection only to achieve the
purpose of giving every opportunity to the parties for reconciliation. The question whether
the ground urged is sufficient to make the case fit for recession of decree comes after the
Court is satisfied about the truth of the averments made in the application.

In the case of S. Narasimha v. Vijaya Bai,1 the Karnataka High Court has decided that the
statute does not refer to any specific grounds on which the decree for judicial separation can
be annulled or rescinded. Section 10 (2) of the Act, however, empowers the court to rescind
the decree for judicial separation if it considers it just and reasonable to do so. A party against
whom a decree for judicial separation is passed cannot succeed in getting the decree
rescinded, in the absence of other circumstances which justify an order of rescission to be
passed, merely by saying that he or she is willing to re-join and live with the other spouse.
The power conferred on the Court under Section 10 (2) has to be exercised with great
circumspection.

THE FOLLOWING ARE THE CIRCUMSTANCES IN WHICH THE COURT MAY

RESCIND THE DECREE:
 If the decree had been obtained ex parte, by showing reasonable excuse for his or her
absence, or for his or her alleged desertion.
 If the parties had cohabited with each other, after the decree, or have come to terms
with each other and have again begun to live as husband and wife.
 If the opposite party has condoned the offence.
 If the opposite party has satisfied the court that he or she is willing to live as husband
and wife and is not going to do any such thing in future on which judicial separation
was granted (Section 23).
 If the opposite party is cured of leprosy or venereal disease, or unsoundness of mind
and in spite of that, the petitioner is not willing to resume cohabitation (Section 23).

STANDARD OF PROOF
While awarding the relief, the Court must be satisfied beyond all reasonable doubt; what is
required is that there should be strict inquiry into the matter. It does not mean that proof
should reach certainty. But it must carry a high degree of probability.

1
AIR 1978 Kant. 115
INCIDENTS AND EFFECTS OF JUDICIAL SEPARATION

The following are the incidents and effects of an order of judicial separation:
1. That the marriage tie is not dissolved.
2. That after the passing of decree of judicial separation, the husband and wife are not
bound to live together or dine together as judicial separation is separation from bed
and board.
3. After the decree of judicial separation it will not be obligatory for the parties to
cohabit with each other.
4. It does not prevent the parties from subsequent resuming cohabitation and living
together as husband and wife as originally they did. It is not necessary for them to
undergo the ceremony of marriage again because their original marriage still subsists
in spite of the decree of judicial separation.
5. A fortiori if either spouse marries during that period, he or she will be guilty of
bigamy and will be liable for punishment prescribed by Section 17 of this Act.
6. The petitioner, if she be the wife, becomes entitled to alimony from the husband, and
if he is the husband he can claim maintenance from wife under Section 25 of this Act.
7. The wife shall, from the date of decree and till separation continues, be considered as
a feme sole, i.e. “independent woman” with respect to property of every description.
8. The mutual rights and obligations arising from the marriage are suspended and the
rights and duties prescribed by the decree are substituted therefor.