FAMILY LAW I

FINAL PROJECT
Judicial Separation
Sub-topic: Position under Indian Matrimonial Laws

Submitted by:
Ms. Srishtti Doshi
B.A LL.B
Div: A
Roll No: 48
PRN: 15010323048
In
September, 2016.
Under the guidance of
Prof. Ambrina Khan

Symbiosis Law School, Hyderabad

Symbiosis International University, Pune

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 TABLE OF CONTENTS

1. ACKNOWLEDGMENTS……………………………….…......03
2. ABSTRACT…………………………………….....……….........04
3. RESEARCH METHODOLOGY……………………..…….....05-06
4. PREAMBLE…………………………………………………….07
5. INTRODUCTION……………………………………………....07-08
6. JUDICIAL SEPARATION UNDER HMA, 1955………..........08-13
7. JUDICIAL SEPARATION UNDER MUSLIM LAW……......13-15
8. JUDICIAL SEPARATION UNDER CHRISTIAN LAW…....15-18
9. JUDICIAL SEPARATION UNDER PARSI LAW…….……..18-22
10. CONCLUSION………….……………………………………….23
11. BIBLIOGRAPHY……………………………………………….24

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 ACKNOWLEDGEMENT

I would like to express my sincere gratitude and indebtedness to Prof. Ambrina Khan for her
enlightening lectures on Family Law. I would also like to express my sincere gratitude to our
teaching staff for guiding me the path towards gaining knowledge. I would also like to thank
Symbiosis Law School, Hyderabad’s library for the wealth of information therein. I would like to
thank Library Staff as well for their co-operation.

I would also like to thank my batch mates and seniors who inspired, helped and guided me in
making this project.

Name: Srishtti Doshi

Roll No.: 048 (15010323048)

Semester: III

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 ABSTRACT

This paper focuses on the position of judicial separation under Indian Matrimonial Laws. India is
a country of diversity which is home to many religions. Thus, she is also home to various
personal laws. The remedy of judicial separation differs under each of these personal laws. This
paper also examines the application or position of judicial separation under the Hindu as well as
Muslim Personal Laws. Apart from that, this paper also seeks to understand whether there is any
use or application of judicial separation in any other countries apart from India and if there is any
use, then what the difference between such applications is. However, this research paper is only
restricted to the remedy of judicial separation. It does not venture out into the other grounds or
remedies available.

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 RESEARCH METHODOLOGY

SCOPE AND OBJECTIVE OF THE STUDY

The object of the study is to analyse the positon of judicial separation under Indian Matrimonial
Laws. It is a study of the varied provisions given under different personals laws and the varied
application of these provisions.

RESEARCH METHODOLOGY

The methodology adopted is largely analytical and descriptive. Reliance has been placed largely
on secondary sources like books and articles. The lectures and classroom discussion have been
rich with valuable pointers and gave direction to the research.

CHAPTERIZATION

This project has been divided into five chapters. It consists of following chapters, Introduction
(Chapter I), Position of Judicial Separation under Hindu Law (Chapter II), Position of Judicial
Separation under Muslim Law (Chapter III), Position of Judicial Separation under Christian Law
(Chapter IV, Position of Judicial Separation under Parsi Laws (Chapter V), and Conclusion
(Chapter VI).

RESEARCH QUESTIONS

1. What is the position of judicial separation under Hindu Personal Laws?

2. What is the position of judicial separation under Muslim Personal Laws?
3. What is the position of judicial separation under Christian Laws?
4. What is the position of judicial separation under Parsi Laws?

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HYPOTHESIS

Whilst judicial separation proceedings are rare compared to those for a divorce, they are an
alternative option in cases where there are strong moral objections, cultural reasons or religious
beliefs for a party to the marriage not wanting to obtain a divorce. When a decree of judicial
separation is obtained, the parties remain married as the decree of judicial separation does not
dissolve their marriage (unlike a decree absolute in divorce). Instead, the decree of judicial
separation simply relieves the parties of their duty and obligation to live together. If either party
subsequently wishes to end their marriage then a petition for divorce can be filed at a later date
and, if a decree of judicial separation has already been granted, the party obtaining it is not
prevented from filing a divorce petition on the same or substantially the same facts. This means
the fact used in judicial separation proceedings can subsequently be used as proof of a fact in
later divorce proceedings. Furthermore, it is possible for the respondent in judicial separation
proceedings to file, in any event, a petition for divorce after he or she has received the other
parties’ judicial separation petition.

MODE OF CITATION

A uniform system of citation is followed throughout in the contents.

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 JUDICIAL SEPARATION AND ITS APPLICATION IN INDIA
An Understanding of Personal Laws

Preamble:

Marriage is a universal human institution which has formed the foundation of family. It usually
means a voluntary union for life of one man with one woman to the exclusion of others. In the
case of Shaw vs Gould1, Lord Westbusy rightly stated that “Marriage is the very foundation of
civil society and no part of law and institutions of another country can be of more vital
importance. In order to understand the application of Judicial Separation in India, we must first
understand what judicial separation is. Judicial separation is an instrument devised under law to
afford some time for introspection to both the parties of a troubled marriage. Through this, law
allows an opportunity to both the husband and the wife to think about the continuance of their
relationship while at the same time directing them to live separately, thus allowing them the
much needed space and independence to choose their path and make their decisions. For some,
judicial separation is like the last resort or the last step before the marriage actually breaks up
and the marital relationship sees an end. However, in some cases, judicial separation results in
the reconciliation of both the aggrieved parties. This project tries to analyse the application of the
laws related to judicial separation under the various personal laws present in India, namely,
Hindu, Muslim, Christian and Parsi laws. Apart from that, this project also tries to clearly
demarcate the difference between divorce and judicial separation, which are often
misinterpreted. Through this project, an attempt is made to critically understand the aspect of
judicial separation under various personal laws present in India and a few suggestions for
improvement have also been advanced.

Introduction:

In India, divorce is largely looked down upon. Even though judicial separation proceedings are
rare compared to those of a divorce, they are an alternative option in cases where there are strong
moral objections, cultural reasons or religious beliefs for a party to the marriage not wanting to

1
Shaw vs Gould (1868) L.R. 3 H.L. 55

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obtain a divorce. When a decree of judicial separation is obtained, the parties remain married as
the decree of judicial separation does not dissolve their marriage, like it does in proceedings of
divorce. Instead, the decree of judicial separation simply relieves the parties of their duty and
obligation to live together. However, if either party subsequently wishes to end their marriage
then a petition for divorce can be filed at a later date and, if a decree of judicial separation has
already been granted, the party obtaining it is not prevented from filing a divorce petition on the
same or substantially the same facts. This means the facts used in judicial separation proceedings
can subsequently be used as proof of a fact in later divorce proceedings. There are variations in
the application of judicial separation under the different personal laws. Thus, the first research
question aims at understanding the application of judicial separation under the Hindu Law. In the
second research question, the author tries to understand the use of judicial separation under the
Muslim Laws, as applicable in India. The third research question attempts to analyse the
application of judicial separation under the Christian and Parsi Laws. Lastly, the fourth research
question brings about a comparative analysis of the application of judicial separation in India
and a few other countries. Apart from the abovementioned questions, suggestions for
improvement have also been advanced through this project.

JUDICIAL SEPARATION UNDER HINDU LAW:

All Hindu marriages are solemnized under the Hindu Marriage Act of 1955 (hereby referred to
as “the Act”). Any marriage not in compliance with the rules and regulations mentioned in the
Act can be declared to be void or voidable by the Courts. Section 10 of the Hindu Marriage Act,
1955 provides for the remedy judicial separation. The elaborate grounds for judicial separation
are not independently mentioned the HMA, 1955 as these grounds are the same as the ones given
under Section 13 of the Act which talks about the divorce grounds. It provides that either party to
a marriage can file a petition before the Court for the relief of judicial separation on any of the
following grounds:

(i) That the other party has had voluntary sexual intercourse with any person other than his
or her spouse after solemnization of marriage, or in simpler language, has committed the
act of Adultery;

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(ii) That the other party has, after the solemnization of the marriage, treated his/her spouse
with Cruelty.
The definition of cruelty has evolved overtime. Initially, an act had to have caused
reasonable apprehension and harm to be called an act of cruelty. However, according to
the modern law, mere cruel treatment of the petitioner, without the presence of
apprehension, will also qualify as cruelty. The leading case of Russel vs Russel2 gave
out a clear understanding of cruelty when its judgement stated that an act of cruelty is
one where “the conduct was of such a character as to have caused danger to life, limb or
health, bodily or mental or as to give rise to a reasonable apprehension of such danger”3
Apart from the judicial precedents, the Matrimonial Causes Act, 1973, applicable in
England, states that any act which is reasonable not expected and makes it difficult for
the petitioner to live with the respondent can be classified as a cruel act4.
Under the Hindu Marriage Act, 1955, cruelty has been classified into 2 types:
a) Physical Cruelty
b) Mental Cruelty;

One of the most prominent cases dealing with judicial separation based on cruelty was the case
of Narayan Ganesh Dastane vs Sucheta Narayan Dastane. In this case, the appellant husband
filed a petition for annulment of marriage on the round of fraud, for divorce on the ground of
unsoundness of mind and for judicial separation on the ground of cruelty. The Trial Court
rejected the contention of fraud and unsoundness of mind. It, however, held the wife guilty of
cruelty and on that ground passed a decree for judicial separation. Both sides went in appeal to
the District Court which dismissed the husband's appeal and allowed the wife's. The husband
then filed a Second Appeal in the High Court, which was also rejected.5

(iii) That the other party has Deserted the spouse for a continuous period of not less than 2
years immediately preceding the presentation of the petition;
Under the HMA, 1955, desertion can be of 3 types:

2
(1880) LR 14 Ch D 471
3
Russel vs Russel (1897) AC 395
4
Chapter 18, Part I, Section 2 (b), The Matrimonial Causes Act, 1973.
5
Narayan Ganesh Dastane vs Sucheta Narayan Dastane 1975 AIR 1534

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 a) Actual Desertion: Actual desertion is when there exists a factum of physical
separation combined with Animus deserdendi or the intention to desert. This fact
and intention must be without a reasonable cause and without consent and must
be for a period of more than 2 years.
b) Constructive Desertion: Constructive desertion is when there is a factum of
separation, which is not present physically but through the conduct of the parties,
combined with Animus deserdendi or the intention to desert. This fact and
intention must be without a reasonable cause and without consent and must be for
a period of more than 2 years.

The leading case on this matter was that of Bipin Chandra vs Prabhavati. In this case, the
parties were married in 1942 and there was a child of the marriage. In 1947 the appellant left for
England on business and on his return to India discovered that this wife (respondent) bad
been having amorous correspondence with one M, and taxed her with having developed
intimacy with him. She was unable to give any answer and went to her father’s place on May
24, 1947, on the pretext of the marriage of her cousin which was to take place in June. On
July 15, 1947, the appellant sent a notice to the respondent through his solicitor in which after
mentioning the fact that she had, left against his wishes stated that he did not desire to keep her
any longer under his care and protection, and desired her to send the minor son to him.
On July 4, 1951, the appellant instituted the suit for divorce under Section 3(1)(d) of the
Bombay Hindu Divorce Act, 1947, on the ground that the respondent had been in desertion
ever since May 24, 1947, without reasonable cause and without his consent and against his will
for a period of over four years. The respondent's case that it was the appellant who by his
treatment of her after his return from England had made her life unbearable and compelled her
to leave her marital home against her wishes, 'was not proved but there was evidence that after
the solicitor's notice dated July 15, 1947, was receive by the respondent, attempts were made
by her father and his relations to bring about reconciliation between the parties but they
failed owing to the attitude of the appellant. The question was whether the respondent had
been in desertion, entitling the appellant to have a decree for divorce. Held that, on the facts,
though the initial fault lay with the respondent, her leaving her marital home was
not actuated by any animus to desert her husband but as the result of her sense of guilt, and
as subsequently she was willing to come back but could not do, so owing to the

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attitude of the appellant, there was no proof that she deserted him, much less that she bad
harboured that animus for the statutory period, and the appellant's case must fail6.

c) Act of Wilful Neglect

The clause of desertion gets terminated on 3 grounds:

a) Resumption of co-habitation between the parties

b) Resumption of marital intercourse between the parties
c) Animus revertendi or the offer or intention of reconciliation

(iv) That the other party has ceased to be a Hindu by Conversion to another religion;
(v) That the other party has been incurably of Unsound Mind, or has been suffering
continuously or intermittently from Mental Disorder of such a kind and to such an
extent that the petitioner cannot reasonably be expected to live with the other party.
According to the HMA, 1955, mental disorders can be of 2 types:

a) Mental Illness or an arrested development of the brain

b) Psychopathic Disorders which include any disability of the brain like
Schizophrenia.

(vi) That the other party has been suffering from a virulent and incurable form of Leprosy;

(vii) That the other party has been suffering from Venereal Disease in a communicable form;

(viii) That the other party has Renounced the World by entering any religious order;

(ix) That the other party has not been heard of as being alive for a period of seven years or
more by those persons who would naturally have heard of him/her, had the party been
alive. Such a situation is known as Presumption of Death.

6
Bipin Chandra vs Prabhavati 1957 AIR 176

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These abovementioned 9 grounds of judicial separation are available to both, the husband as well
as the wife. However, keeping in mind the rights of women and the already existing
mistreatment of women in a major of Indian marriages, 4 special grounds for judicial separation
by wife have been laid down in the Hindu Marriage Act, 1955.

(i) Wife of Polygamous Marriages. This right now stands obsolete. Initially, this right
was made available to the wives who were in a polygamous marriage before the
HMA, 1955 came into force and prohibited bigamy/polygamy.

(ii) Husband is Guilty of Unnatural Offences. This right is available to those wives whose
husbands have been charged with offences like Rape, Sodomy or Bestiality, all three
of which are punishable offences under Section 377 of the Indian Penal Code.
(iii) Non-Resumption of Cohabitation. This right is made available to the wife when, even
after 1 year of passing a decree of maintenance under Section 18 of the Hindu
Adoptions and Maintenance Act, 19567, cohabitation has not presumed between the
husband and the wife.

(iv) Repudiation of Child Marriage. This right is available to a woman who, at the time of
marriage, was more than 15 years and less than 18 years of age. Such a woman can
repudiate or revoke her marriage on the ground of Child Marriage.

Where a decree for judicial separation has been passed in favour of either of the parties, it shall
no longer be obligatory for the parties to cohabit with each other. It is to be noted that it is on
these grounds that divorce8 can also be granted. It has been held that unless a case for divorce is
made out, the question of granting judicial separation does not arise. The relief for judicial
separation is an alternate one. Therefore, the Courts while dealing with the applications for
judicial separation shall bear in mind the specific grounds that were raised for grant of relief
claimed and insist on strict proof to establish those Thus on a petition for divorce, the Court has
the discretion in respect of the grounds for divorce other than those mentioned in section 13 (1)
(A) and also some other grounds to grant restricted relief of judicial separation instead of divorce
straightway. It is also necessary to understand that if the parties do agree to resume co-habitation

7
Maintenance of a Wife, Section 18, Hindu Adoptions and Maintenance Act, 1956.
8
Section 13 (1) and (2), Hindu Marriage Act, 1955.

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any time after the passing of the decree for judicial separation, they can get the decree rescinded
by applying to the court. The Act does not refer to any specific grounds on which a decree for
judicial separation can be annulled or rescinded. Section 10 (2) however, empowers the Court to
rescind the decree for judicial separation if it considers it just and reasonable to do so. However,
the Courts have repeatedly warned that this power of rescission has to be exercised with great
circumspection and not in a hurry and only after satisfying themselves that it would be just and
reasonable to allow such rescission.
A Hindu Marriage, unlike a Muslim Marriage, is not a contractual one. It is an eternally
sacramental union of not just two individuals but their families as well. This is one of the major
reasons why the proceedings of judicial separation are so intricate under the HMA, 1955, so that
the parties get time to rethink about their relationship and do not take any decision in haste.

JUDICIAL SEPARATION UNDER MUSLIM LAW:

A Muslim marriage is always solemnized as per the ‘Shariat’ law, which is considered to be the
personal law of the Islamic religion and applies on every Muslim. Since the Muslim Law is India
is an uncodified law, the ‘Shariat’ holds supreme value. The Shariat law is solely based on the
Quran (the holy book of Islam) and the Sunnah (the teachings of Prophet Muhammad). However,
in India, the entire Shariat law is not applicable. Only those provisions hold value in India which
are in line with the Constitution of India and are not violative of any of its provisions. The
Application of Shariat Law Act, 1937, states all the areas in which the Shariat holds value in
India. It states that in matters relating to Marriage, Divorce and Inheritance, the Shariat law has
compulsory application. However, in matters relating to Adoptions and Wills, a declaration of
application is required. Muslim marriage is recognized as a contractual marriage and is thus, civil
in nature. There exists no direct provision for judicial separation under the Shariat law. However,
the remedy for judicial separation for Muslim marriages is present in the form of ‘Faskh’.
‘Faskh’ literally means annulment. It differs from talaq and other forms of dissolution of
marriage in legal structure and its effects. Faskh is not a proper judicial separation. It is available
to those wives whose husbands are not in a position to maintain them. Such a remedy if Faskh
stands valid only till the time the husband’s condition of not being able to maintain the wife
remains.

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There exist different forms of Faskh. Some forms need a decree of the Court and some others
require no such decree or order. For example, if the husband fails to provide maintenance to the
wife, she may file a petition for judicial separation. On the other hand, if it is established that the
spouses are living in a prohibited relationship, then it will not need any decree of the court. They
will instead be automatically separated upon knowing the fact of such prohibition.
A decree of the court for Faskh is required in the following cases:

 Failure of the husband to provide maintenance

 Harm caused to wife
 Desertion by the husband or his imprisonment
 Separation due to Khula (divorce by mutual agreement) if husband does not agree to her
request
 Disease or defect in the husband or his impotency
 Option of puberty
 Mutual imprecation

There exist some instances in which no decree of the court is required, these instances are:

 Invalidity of contract of marriage

 Existence of in-law relationship between the spouses or spouses being in prohibited
relationships
 Separation due to ila (Where there is no sexual intercourse between the parties for 4
months or more. Under the Shia law, the petitioner has to approach the court for an order)
 Apostasy of wife or husband
In the abovementioned cases, the annulment of marriage is done by the operation of law. It needs
to pronouncement of repudiation by the husband or the order of the court.

Separation due to Failure to provide Maintenance

There are various schools of thought under the Islamic law. To name a few, Hanafi, Shafi, etc.
are a few of the prominent ones. All these schools of thought have a different perspective in
relation to the validity and application of the proceedings of judicial separation.

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The Hanafi says that judicial separation is not permissible on the grounds of failure to provide
maintenance. They argue that the husband will either be solvent or insolvent and if he is poor and
insolvent, one cannot blame him for his separation and overburden him.9
They further maintain that during the time of the Holy Prophet, there existed rich and poor
people but not a single example of judicial separation is found due to the inability of the husband
to provide maintenance.
On the other hand, Maliki, Hanabali and Shafi jurists are of the view that even if the husband is
poor, wife has a right to take the matter to the court. The court would either compel the husband
to pay maintenance or would invalidate the marriage contract10.

Separation due to Non-Provision of Maintenance

Maliki school of thought is of the view that the separation would be tala-i-raja’I, where the
husband would be granted the right to go back to his wife if he becomes able to provide
maintenance to her during the ‘iddat’ period.
However, the Shafi and Hanabali jurists say that separation would take place by the order of
qadi or the judge of the Sharia court and will be regarded as invalidation of the marriage contract
and therefore the husband would have no right to go back to her wife.

JUDICIAL SEPARATION UNDER CHRISTIAN LAW

In India, Christian marriages are solemnized as per the Indian Christian Marriages Act, 1872.
However, this act gives no provisions for divorce or dissolution of marriage. Thus, The Indian
Divorce Act, 1869 deals with divorce among Christians. The reasons and grounds for divorce
under this act are almost similar to the ones under the Hindu Marriage Act of 1955. Since the
Roman Catholic Church has not been recognized in India, Roman Catholics do not come under
the purview of any divorce proceedings mentioned in the Indian Divorce Act, 1869. The Divorce
Act does not contain any provision for divorce by mutual consent either.
Maintenance: According the Section 37of the Indian Divorce Act, 1869, a husband is required to
pay one fifth of his salary as maintenance to his wife, during the period in which the case is in
court. Later, maintenance can be given either yearly or once for all as total settlement.

9
Verse (65:7), Quran
10
Mughni-al-Muhtaj, vol.3

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According to the Indian Divorce Act, 1869, a Christian wife can file for divorce or judicial
separation in the following grounds:
 That her husband has exchanged his profession of Christianity and gone through a form
of marriage with another woman.
 That her husband has been guilty of incestuous adultery.
 That her husband has been guilty of bigamy and adultery.
 That her husband has been guilty of rape, sodomy or bestiality.
 That her husband is guilty of adultery coupled with desertion, without reasonable excuse
for two years or more.
The Indian Divorce Act, 1869, is an attempt to amend the law relating to the divorce of
Christians and to confer jurisdiction on certain Courts in matrimonial matters. Section 7 of the
Act specifically provides for the application of the principles and rules on which the Court for
Divorce and Matrimonial Causes in England acts and gives relief.
The reliefs granted under Indian Divorce Act, 1869 are:
 Dissolution of marriage
 Nullity of marriage
 Judicial separation
 Protection orders
 Restitution of conjugal rights.
Apart from the abovementioned reliefs, the courts also have the power to:
 Order the party guilty of adultery to pay damages and cost
 Order alimony, pendante-lite (pending decision of the Court) or permanent
 Order settlement of property
 Make order as to custody of children in a suit or separation

Section 22 of the Indian Divorce Act bars ‘divorce mensa et toro’ (a decree that can be obtained
without the presence of the other party, an exparte decree). However, it provides for obtaining a
(exparte) decree for judicial separation on grounds of:
 Adultery
 Cruelty

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  Desertion, without reasonable excuse for two years or more.11
In the famous case of M.V. Ramana vs M. Peddiraju12, the requirement of impleadment of co-
adulterer was not complied with, a husband’s petition for separation on the ground of adultery
was dismissed.
Section 23 of the Act states that any petition for judicial separation on the abovementioned
grounds, can be made by either the husband or the wife. Such a petition is supposed to be made
before the District Court or the High Court. Further, it is stated in Section 23 that the Courts may
grant a decree of judicial separation only if they are satisfied with the truth of the petition and
there exists no legal and reasonable ground as to why the decree should not be granted.
It is necessary to understand that once the separation is awarded, from the date of the sentence,
the separated wife would be deemed spinster, with respect to property, which she may acquire or
which may devolve on her. This status would apply for the purposes of contract, wrongs and
injuries and suing and being sued in civil proceedings. Section 24 and Section 25 of the Indian
Divorce Act, 1869 deal with the status of the women after the decree of judicial separation has
been granted.
Section 24 states that once the decree of separation has been given, the wife is considered to be a
spinster or unmarried. Such status of the wife starts from the date of the sentence and continues
till the decree stands valid. Such a wife is considered to be unmarried, with respect to all
properties that she might acquire or which might devolve upon her. In case of the death of the
separated wife, such property devolves upon the person to whom it would have gone to, in case
of the death of the husband.
Further, Section 25 states that a separated wife must be deemed to be a spinster for purposes of
contract and suing. In every case of a judicial separation under this Act, the wife, while she is
separated from her husband, shall be considered as an unmarried woman for the purposes of
contract, and wrongs and injuries, and suing and being sued in any civil proceedings. It is
important to notice that under this Section, the husband holds no liability in respect of any
contract, act or costs entered into, done, omitted or incurred by her during the separation.
However, it is necessary that in any such judicial separation, alimony has been decreed or

11
Section 22, Indian Divorce Act: Bar to decree for divorce a mensa et toro; but judicial separation obtainable by
husband or wife. —No decree shall hereafter be made for a divorce a mensa et toro, but the husband or wife may
obtain a decree of judicial separation, on the ground of adultery, or cruelty, or desertion for two years or upwards,
and such decree shall have the effect of a divorce a mensa et toro under the existing law, and such other legal effect
as hereinafter mentioned.
12
M.V. Ramana vs M. Peddiraju AIR 2000 AP 328

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ordered to be paid to the wife, and the same is not duly paid by the husband, he shall be liable for
necessaries supplied for her use.
Section 26 of the Indian Divorce Act deals with the reversal of the decree of judicial separation.
Any decree of separation which was obtained during absence of husband or wife (exparte decree)
can be reversed. Any husband or wife, may, at any time thereafter, present a petition to the Court
by which the decree was pronounced, praying for a reversal of such decree, on the ground that it
was obtained in his or her absence, and that there was reasonable excuse for the alleged
desertion, where desertion was the ground of such decree. The Court may, on being satisfied of
the truth of the allegations of such petition reverse the decree accordingly; but such reversal shall
not prejudice or affect the rights or remedies which any other person would have had, in case it
had not been decreed, in respect of any debts, contracts, or acts of the wife incurred, entered into,
or done between the times of the sentence of separation and of the reversal thereof.
Even though the Indian Divorce Act of 1869 is the only measure available to Christians to
approach the Courts for divorce or judicial separation, it remains a half-baked measure. It does
not provide for a comprehensive personal law of the Christian Community which is the need of
the hour. Another drawback of this act is that it fails to recognize the Roman Catholics and
instigates conflicts between religious sects. This can be rectified only if a proper codified
Christian Law is advanced.

JUDICIAL SEPARATION UNDER PARSI LAW

The Parsis originally originated from Iran .They originated in the Persian province of “Pers”. In
AD 636, when the Arabs invaded Persia and Caliph Omar defeated the Parsi King Yezdezind,
they sailed off in boats in search of a new land to escape persecution, carrying with them their
sacred fire. They landed twenty five miles south of Daman and the head of the group implored
the local king to give them refuge, with a promise that they would enrich his land.

The king laid down five conditions:

 The Parsis should adopt the local language.

 They should translate their holy texts into the local language.
 Their women must change their dress and wear the local saree.
 Their marriage ceremony should include the local rite of tying of the sacred knot.

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  They should surrender their arms.

They consented to all the five terms and in return the king granted them permission to build their
fire temples and allotted them an undeveloped country near Diu. They renamed the place as
NAVSARI which literally means ‘New Sari’ as it reminded them of a place they had left behind
in Persia. They settled down to agriculture and lived amicably with the Hindu community. Due
to the rigid caste system by the Hindus, assimilation was not possible and hence they were able
to maintain their separate and distinct identity. Within this integrated community there are two
sects- Shensoys and Kudmis. The term Parsi is not the same of the religious community. It of
course carries some territorial or racial significance. In order to be a Parsi, he or she must be a
Zoroastrian13. The Parsis are listed under the head ‘other communities’. Parsi Law Association of
1855 in its mission succeeded in getting Parsi Marriage and Divorce Act (Act No XV) 1865 and
after various amendments, the Parsi Marriage and Divorce (Amendment) Act, 1988 was formed.

Marriage & Divorce:

Zoroastrianism states that marriage is a spiritual discipline, and not a mere civil contract. The
Parsi laws acknowledge the conversion of a non-Parsi into Zoroastrianism. For the union to be
legal, the marriage must be solemnized by the priest in an ‘Ashirvad’ (blessing) ceremony.
Besides, at least two Parsi witnesses must be present during the ceremony to vouch for its
legitimacy14. The officiating priest must certify the wedlock on the certificate given under
Schedule II of the Parsi Marriage and Divorce Act. This certificate must also be duly signed by
the bride, bridegroom and the two witnesses. The said priest has to thereupon send the certificate
to the Registrar of the place where the marriage has been solemnized, who makes a formal
record of the union15.

Section 5(2) of the Act states:

 The accused had already been married to some person16.

 That the person to whom he was married was still living.

13
Janak Raj Jai, Universal Handbook on Divorce Law and Procedures (2010, 3rd Ed)
14
Section 3, Parsi Marriage and Divorce Act, 1988.
15
Sections 6 & 7, Parsi Marriage and Divorce Act, 1988.
16
Birbul vs Sawan (1874) Pr No. 4 of 1874

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  That the accused married another person.
 That the second marriage was void by reason of its taking place during the lifetime of the
first spouse

In addition to the above four, it is to be also proved that the accused when marrying the second
person concealed from such person the fact of the former marriage17. Parsi Marriage and Divorce
Act, 1936 lays down prohibition to marriage on the basis of consanguinity and affinity in
Schedule I to the Act. Under this act, a marriage is void:

(i) If parties are within prohibited relationship of consanguinity or affinity,

(ii) If necessary formalities of marriage have not been performed
(iii) If any party to marriage is below requisite age of marjority
(iv) Either party to the marriage was impotent.

The provision under this act is also similar with this modification that period of limitation from
that date of marriage for filing the suit for divorce on this ground is two years and not one year as
under the Special Marriage Act, 1954 and the Hindu Marriage Act, 1955.

The Act laid down grounds for divorce or nullity as insanity, non-consummation owing to
physical causes, absence or desertion for seven years, adultery and cruelty. While almost all
other grounds of divorce remained the same, the period of desertion was brought down from 7
years to 3 years and later to 1 year. A Parsi husband or wife may file a suit to dissolve the
marriage tie under section 31 of this act. The marriage of such husband or wife shall, with
compliance of the requirements contained under the provisions of the said section be dissolved.
Parties may sue for divorce on any one or more of the grounds provided under section 32 of the
act. When a court passes a decree for divorce, the court shall send a copy of the decree for
registration to the registrar of marriages within its jurisdiction appointed under section 7 of the
act. The registrar shall enter the same in a register to be kept by him for the purpose, and the
provisions of part II applicable to the registrars and registers of marriages shall be applicable, so
far as may be, to the registrars and registers of divorces18. Continuous absence for seven years is

17
1982 Crlj 136 Mad
18
Section 3 to 17, Parsi Marriage and Divorce Act, 1988.

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a ground for divorce. The presumption under this section is with reference to the filing of the
proceeding for dissolution of marriage and not with reference to any particular date.

Under this act, mutual consent and irretrievable breakdown of marriage are not grounds of
divorce. However, a decree for judicial separation may be followed by a decree of divorce if the
parties have not had marital intercourse for the statutory period since such decree or order19. It is
to be noted that Section 32 (B) providing for mutual consent for divorce has been inserted in this
Act. “Causing of grievous hurt” under the Parsi Marriage and Divorce Act, 1936 is ground for
divorce20. Provision to clause (dd) of this Act, lays down that in a petition for divorce on the
ground of cruelty, the court has discretion to pass a decree of divorce or judicial separation21.
Rape and unnatural offences are ground of divorce for both husband and wife22. If at the time of
marriage one of the parties to the marriage was of unsound mind and continued to be so up to the
date of presentation of the plaint, the plaintiff can obtain a decree of dissolution of marriage
provided he or she had filed the suit within three years from the date of marriage23. But if a Parsi
knowingly marries an insane person, marriage cannot be avoided. Post marriage insanity of a
spouse is not a ground for divorce. Parsi divorce rates are higher than those for other Indian
communities because, when compared to Hindu law, Parsi law has always made divorce easier.
Remarriage after the death of a spouse is permitted for both sexes. Leprosy is not a ground for
divorce in Parsi law unlike that in Muslim law and Hindu Law.

In Maneka Gandhi vs Indira Gandhi24, it was held that Sanjay Gandhi who was born of a Parsi
father and a Hindu mother was a Hindu. Any Indian Parsi who does not subscribe to
Zoroastrianism is not a Parsi by religion. Grounds of divorce were further liberalized and divorce
by mutual consent was introduced. The disparity between the rights of legitimate children was
abolished. All this was done through various amendments of the Parsi Marriage and Divorce Act
of 1988.

19
Jorden Deingdeh vs S S Chopra AIR 1985 SC 935
20
Section 32 (e), Parsi Marriage and Divorce Act, 1988.
21
Section 32, Parsi Marriage and Divorce Act, 1988.
22
Section 32 (a), Parsi Marriage and Divorce Act, 1988.
23
Section 32 (b), Parsi Marriage and Divorce Act, 1988.
24
Maneka Gandhi vs Indira Gandhi AIR 1984 Del 428

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The premise that gender equity was not the primary object is substantiated by the retention of
certain outdated discriminatory notions inherited from the British statutes in 1865.The debate in
parliament when the bills were enacted was cursory. The members did not concern themselves
with the implications of the bill on Parsi women. The debate was confined to two spheres:

(i) Since Parsis have willingly modified their laws, it is time to enact a uniform civil
code.
(ii) Praises to the Parsi community are an enlightened and progressive community and
thereby insinuating that other communities are backward and reactionary. The Act
also retained the sexist provisions.

A bill was introduced into the council of state in 1935 by Sir Pheroze Sethna. The select
committee reported to the council of state the same year and the bill was passed on 13th March,
1936. The Federal Assembly considered the bill in April 1936. The reforms expanded the scope
of dissolving marriage by introducing several new grounds – non consummation of marriage,
insanity, pre-marriage pregnancy, grievous hurt and desertion. The Parsi Marriage and Divorce
Act (1936) came under the purview of seminal amendments which have proved to be milestones
in the personal law reforms. Marriages between consanguine and affine relatives are deemed
legal, and have become a common practice. In fact, parallel-and cross-cousin marriages as well
as inter-generational marriages are legally permitted. A Parsi who marries outside the
community is also not bared from practicing Zoroastrianism. Besides, the child of such wedlock
cannot be refused from receiving the Parsi thread ceremony.

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 CONCLUSION

Whilst judicial separation proceedings are rare compared to those for a divorce, they are an
alternative option in cases where there are strong moral objections, cultural reasons or religious
beliefs for a party to the marriage not wanting to obtain a divorce. When a decree of judicial
separation is obtained, the parties remain married as the decree of judicial separation does not
dissolve their marriage (unlike a decree absolute in divorce). Instead, the decree of judicial
separation simply relieves the parties of their duty and obligation to live together. If either party
subsequently wishes to end their marriage then a petition for divorce can be filed at a later date
and, if a decree of judicial separation has already been granted, the party obtaining it is not
prevented from filing a divorce petition on the same or substantially the same facts. This means
the fact used in judicial separation proceedings can subsequently be used as proof of a fact in
later divorce proceedings. Furthermore, it is possible for the respondent in judicial separation
proceedings to file, in any event, a petition for divorce after he or she has received the other
parties’ judicial separation petition.

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 BIBLIOGRAPHY

 www.scconline.com
 www.manupatra.in
 www.cyberadvocate.in (last visited on 14:20, 27th September, 2016)
 www.indiankanoon.in
 www.cssforum.com
 www.indianlawcases.com
 www.legalservicesindia.com
 Family Law by Paras Diwan
 Bare Acts:
1) Parsi Marriage and Divorce Act, 1988
2) Hindu Marriage Act, 1955
3) Indian Divorce Act, 1869

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