What is the Relevance of Judicial Separation in Today’s Law?
Prof. Derrett says that the real purpose of judicial separation is to enable the spouses, non-relieved of their matrimonial duties towards each other, to reconsider their positions, taste ‘single’ living again and attempt in a less emotional and urgent atmosphere to place their lives and their futures together once again. In fact any person normally resorts to judicial separation only after all efforts fail either to reconcile or to make the respondent agree for divorce.
Even if a decree of judicial separation is passed, it does not help the reconciliation but makes their attitude towards it stiffer and thus the very purpose of the remedy is frustrated rather than achieved as Prof. Derrett has pointed out. There is hardly any case law showing recession of such decrees on the ground of reconciliation. In practice such petitions are filed only as a device to obtain divorce and Prof. Derrett himself admits that a large number of petitions for separation are commenced in the hope that divorce will follow.
Although Prof. Derrett maintains that the remedy is extremely valuable, and appropriate in Hindu community in view of social disapproval of divorce and dislike for remarriage yet its practical utility is highly controversial.
A decree of judicial separation will have serious impact upon her social status and sometimes may put a stigma upon her character rendering the prospects of her future life bleak and uncertain as it has been observed by Professor R.K. Agrawal that such formal separation will shatter her social life and the order would constantly hang as a sword of Damocles over her head because the husband may use it one day to get the marriage dissolved and that as far as Hindu male is concerned in actual life and effect, he can separate from an undesirable spouse without seeking any legal relief.
In Adhyatam Bhatter Alwar v. Adhyatam Bhatter Sri Devi, the appellant and respondent were married on 22nd August 1976, the couple stayed together in village where the parents of the husband reside. After the marriage a female child was born to them on December 1979, where after they separated and the wife and daughter lived with her parents, while the husband continued to stay with his parents. In this case the Appex Court observed that desertion is a matter of inference to be drawn from the facts and circumstance of each case.
The inference may be drawn from certain facts which may not in another case be capable of leading to the same inference, that is to say, the facts have to be viewed as to the purpose which is revealed by those acts or by conduct and expression of intention, both anterior and subsequent to the actual acts of separation.
If in fact there has been a separation, the essential question always is whether that act could be attributable to an animus descrendi. The offence of desertion commences when the fact of separation and the animus deserendi co-exist, in this case the husband satisfactorily proved that wife is guilty of having deserted him for a continuous period of more than two years. So, the husband is entitled to a decree for judicial separation under section 10 of Hindu Law.