Can judicial separation be granted instead of divorce for which party has approached the Court? Read what Del HC says

Delhi High Court: Expressing that the Family Court’s decision was based on optimism and hope rather than the actual factual matrix of the case, the Division Bench of Vipin Sanghi and Jasmeet Singh, JJ., while addressing a matter wherein matrimonial dispute occurred between the parties, observed that,

“..a decree of judicial separation can be rescinded by the same court; but a decree of divorce can be reversed only by a judicial order: either in review or in appeal. If it is passed ex parte, it may be recalled on an application being made for that purpose.”

“Judicial separation and divorce are completely different reliefs– granted on the same grounds–as contained in Section 13 (1), and in the case of a wife, also on any of the grounds specified in sub-Section (2) of Section 13 of the Hindu Marriage Act,1955.”

Appellant-husband filed the matrimonial application challenging decision passed by the Family Court wherein the relief of judicial separation was granted instead of the relief of divorce-as had been sought by the appellant.

On the other hand, the respondent-wife filed a matrimonial application challenging the findings referred by the Family Court against the respondent in the said decision.

Family Court had opined that the respondent-wife was guilty of matrimonial misconduct and was what was asked by her family members, without applying her independent mind. Respondent was also advised by the Court to think again, independently, without any pressure of her family members, in order to settle and re-establish her matrimonial home.

Analysis, Law and Decision

Whether the finding of cruelty returned by the Family Court against the respondent-wife calls for interference?

High Court stated that it was difficult for them to accept the respondent’s version that she was thrown out of her matrimonial home, or that the members of the appellant’s family tried to take her life – in respect whereof there was no complaint or evidence, is difficult for us to accept.

Bench found the allegations of demand of dowry by the appellant or his family members not to inspire the confidence and the same remained unsubstantiated.

Further, the Supreme Court decisions in Mangayakarasi v. M. Yuvaraj, (2020) 3 SCC 786 and Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511, were referred.

As per a statement of the father of the respondent, it was him who forbade the appellant from coming to his house or making any calls. Hence, the onus shifted on the respondent to show her intent and the effort that she made to re-join the company of the appellant. No evidence on record was there to show any effort made by respondent.

No doubt in the credibility of the witnesses was found who were from the appellant’s side and tried to repair the matrimonial bond of the parties. They even endeavoured to help the parties to live together and solve their differences. Their evidence was corroborated by documentary evidence viz the statement made by the respondent’s own father in the appellant’s suit and the lack of intent to resume cohabitation exhibited by the respondent.

Court expressed that the respondent’s attitude, reluctance and obstinacy to join the appellant despite his, his relatives and friends’ effort to bring her back amounted to cruelty. In fact, it was noted that the respondent-wife left the matrimonial home for no reason and levelled false allegations.

The appellant did not get married to the respondent to lead a bachelor’s life. He got married in the hope, and with the expectation, of leading a happy and fulfilling married life. The respondent, by not joining him, has denied him conjugal satisfaction. He has been denied the companionship that he would have been legitimately and rightfully hoping to experience with the respondent.

By the Family Court’s decision, the respondent-wife was asked to give her marriage another chance and think independently of her family members. However, there was no positive move on the part of the respondent.

In view of the above discussion, the respondent-wife perpetrated mental cruelty upon the appellant, and nothing remained in the said marriage.

Legality of the relief granted by the Family Court of judicial separation to the appellant, instead of a decree of divorce

As per the scheme of the Hindu Marriage Act, 1995 the ambit and the scope of the Judicial Separation and Divorce is qualitatively different.

“Judicial Separation is a completely different relief that the aggrieved spouse may seek against the other, under Section 10 of the Hindu Marriage Act.”

High Court remarked that,

“While judicial separation does not end the matrimonial relationship and the marriage is preserved – after a declaration is made establishing the matrimonial misconduct by the other spouse, and it entitles the aggrieved spouse/petitioner to deny conjugal relationships to the other spouse/respondent, a decree of Divorce puts an end to the jural relationship of marriage between the parties, thus liberating them from their marital bond.”

Another, significant observation is that the parties cannot remarry during the period of judicial separation, since the status of marriage subsists. Whereas, once a decree of divorce is granted, parties are free to remarry once the statutory period of appeal expires and there is no restrain passed by a competent court against remarriage.

With regard to the explanation of the concept of Judicial Separation, the Supreme Court decision in Hirachand Srinivas Managaonkar v. Sunanda (2001) 4 SCC 125, was cited.

Elaborating the analysis, in view of the present facts, this Court opined that the Family Court’s decision in ordering the judicial separation instead of Divorce was faulty.

It is not for the Court to decide to substitute the relief sought by the petitioner who has approached the Court.

Can the family Court grant any other relief instead of the one sought?

 “The powers of the Family Court to change the nature of the relief sought is absent. The Family Court cannot be heard to tell the petitioner before it, what is “good” for him/her. It may render its advice to the parties when the matter is pending before it, but when it comes to adjudication, the Family Court is bound to bear in mind the relief sought by the petitioner.”

Another stark observation of this Court was that, the Family Court expected the respondent to come out of the influence of her brother and father, and resume cohabitation with the appellant, but, on the other hand, failed to appreciate that the respondent cannot seek to resume cohabitation with the appellant, when the decree of Judicial Separation was operating against her, unless the appellant consented.

Appellant had clearly expressed his intention of ending the relationship. Family Court should have realized that if the respondent had been unable to come out of the influence of her family members for the last 13 years, there was very little likelihood of her doing so in the near future.

Hence, in view of this Court, the relief of Divorce could not have been denied to the husband, once the ground of cruelty was established under Section 13(1)(ia) of the Hindu Marriage Act.

“…parties were living separately for 12 years now, and the marriage was completely broken.”

The adamance of the wife in regard to refusal to cohabitate with the appellant over the last 12 years showed this Court that there was nothing remaining in their marriage.

Therefore, the family Court’s decision was set aside in so far as it granted a decree of judicial separation to the husband. [Vinay Khurana v. Shweta Khurana, 2022 SCC OnLine Del 517, decided on 18-2-2022]


Advocates before the Court:

For the Appellant: Appellant-in-person

For the Respondent: Naman Joshi, Guneet Sidhu, Advocate with respondent -in-person

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