• Judicial separation

I want a judicial separation on grounds of domestic violence, negligence of domestic duties, cruelty and mental trauma caused to my teenaged daughter and me by my husband.
I want him to move out legally and permanently from the house which was jointly purchased by us,post our marriage. 
Is it possible to remove him from our lives legally and permanently?
Asked 1 year ago in Family Law from Kolkata, West Bengal
Religion: Hindu

Yes it is possible . Do not file divorce now. Write your entire story and lodge 498a, then file domestic violence and maintenance cases.

Aveek Bose
Advocate, Kolkata
950 Answers
4 Consultations

4.7 on 5.0

1) you can file petition for judicial separation against your husband on grounds of mental cruelty

2) since your husband is joint owner of the house you cannot ask him to leave the house

3) you can file DV case against husband seek protection order , maintenance , order restraining husband from disturbing your possession of the house

4) if he violates protection order court can direct him to leave the house

Ajay Sethi
Advocate, Mumbai
66757 Answers
4037 Consultations

5.0 on 5.0

contact a local lawyer and file petition for judicial separation

Ajay Sethi
Advocate, Mumbai
66757 Answers
4037 Consultations

5.0 on 5.0

Yes the divorce can be filed on the ground of mental cruelty followed by a suit for permanent injunction.

Regards

Anilesh Tewari
Advocate, New Delhi
16907 Answers
259 Consultations

5.0 on 5.0

Get in touch with a local lawyer and take the following steps:

File a divorce suit

File a suit for permanent injunction and alimony

File an FIR against the husband

Regards

Anilesh Tewari
Advocate, New Delhi
16907 Answers
259 Consultations

5.0 on 5.0

1. Well. of you wish to dissolve the marriage then judicial separation is of no use and in that event you will have to file a suit for divorce.

2. However if you do not want divorce but wish to stay separate then you cna do so and there is no need to file any suit.

3. Now if you wish to move him out of the house jointly owned by you then you can file case under PWDV Act.

4. In the case filed under PWDV Act the court can pass such order so your husband is directed to evict the house and you can stay all alone.

Devajyoti Barman
Advocate, Kolkata
17780 Answers
251 Consultations

5.0 on 5.0

1) You have to file case against your husband un the family court of your city.

2) No need to hire lawyer.

3) You can visit to directly court and meet registered.

4) take a form from him and write your name as applicant and husband name as defendant.

5) Note all point step by step number wise.

6) stick a court stamp fees on it and after signing submit it to Registrar.

7) Registrar will assign a court to you and summons will be sent to your husband.

Ganesh Kadam
Advocate, Pune
7453 Answers
65 Consultations

4.9 on 5.0

Hello,

Simply file a case of 498a and cases ubder dv act .

In the meantime file a divorce suit.

Hope this hekps.

Regards

Swarupananda Neogi
Advocate, Kolkata
1056 Answers
2 Consultations

4.8 on 5.0

Respected Mam, to clarify from you do you want divorce or judicial separation two are different things though granted on same grounds in divorce marriage is permanently dissolved wherein judicial separation some time is give you stay separately and can make a decision and after period can go for divorce.

The grounds of judicial separation and divorce are same under Hindu marriage Act.

1. A petition of judicial separation can be filed under section 10 whereas divorce is filed under section 13. You can file divorce or separation for cruelty by husband.

2. You can also claim maintenance from your husband in both the cases.

Shubham Jhajharia
Advocate, Ahmedabad
19206 Answers
75 Consultations

5.0 on 5.0

Further to move him out of the house file criminal case of 498a and domestic violence upon him and seek a protection order and residence right in home. After these criminal cases file for divorce or judicial separation.

Shubham Jhajharia
Advocate, Ahmedabad
19206 Answers
75 Consultations

5.0 on 5.0

File a petition under section 10 of the Hindu Marriage Act and contest the same against your husband.

If the Courts finds substance in your allegations against your husband, it will pass a decree of judicial separation in your favour.

Contact a local lawyer having prior experience of handling matrimonial lawyers.

Vibhanshu Srivastava
Advocate, New Delhi
8549 Answers
133 Consultations

5.0 on 5.0

Dear Client,

U/s 18 of THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005, you can get protection orders,

& remove him from shared house hold u/s sec 19 (b) of the Act. -- Hire local lawyer and file petition is court.

And Judicial separation u/s 10 of Hindu Marriage Act. - Family court.

Yogendra Singh Rajawat
Advocate, Jaipur
13088 Answers
15 Consultations

4.6 on 5.0

Dear Madam,

You will get judicial separation. The procedure is as follows. The alimony formala is given at the end.

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Special Marriage Act, 1954

23. Judicial separation

(1) A petition for judicial separation may be presented to the district court either by the husband or the wife,-

(a) on any of the grounds specified 17[in sub-section (1) 18[and sub-section (1A) of section 27] on which a petition for divorce might have been presented; or

(b) on the ground of failure to comply with a decree for restitution of conjugal rights;

and the court, on being satisfied of he truth of the statement made in such petition, and that there is no legal ground why the application should not be granted, may decree judicial separation accordingly.

(2) Where the court grants a decree for judicial separation, it shall be no longer 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.

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Judicial Separation and Divorce in India as per Hindu Marriage Act

Judicial separation is a sort of a last resort before the actual legal break up of marriage i.e. divorce. The reason for the presence of such a provision under Hindu Marriage Act is the anxiety of the legislature that the tensions and wear and tear of every day life and the strain of living together do not result in abrupt break – up of a marital relationship. There is no effect of a decree for judicial separation on the subsistence and continuance of the legal relationship of marriage as such between the parties. The effect however is on their co-habitation. Once a decree for judicial separation is passed, a husband or a wife, whosoever has approached the court, is under no obligation to live with his / her spouse .

The provision for judicial separation is contained in section 10 of the Hindu Marriage Act, 1955. The section reads as under:

A decree for judicial separation can be sought on all those ground on which decree for dissolution of marriage, i.e. divorce can be sought.

Hence, judicial separation can be had on any of the following grounds:

Adultery

Cruelty

Desertion

Apostacy (Conversion of religion)

Insanity

Virulent and incurable form of leprosy

Venereal disease in a communicable form

Renunciation of world by entering any religious order

Has not been heard of as being alive for seven years

If the person applying for judicial separation is the wife, then the following grounds are also available to her:

Remarriage or earlier marriage of the husband but solemnised before the commencement of Hindu Marriage Act, 1955, provided the other wife is alive at the time of presentation of petition for judicial separation by the petitioner wife.

Rape, sodomy or bestiality by the husband committed after the solemnization of his marriage with the petitioner.

Non-resumption of co-habitation between the parties till at least one year after an award of maintenance was made by any court against the husband and in favour of the petitioner wife.

Solemnization of the petitioner wife’s marriage with the respondent husband before she had attained the age of 15 years provided she had repudiated the marriage on attaining the age of 15 years but before attaining the age of 18 years.

It is on all the above grounds that judicial separation can be sought. The first 9 grounds are available to both the husband and the wife but the last four grounds are available only to the wife. It is to be noted that it is on these grounds that divorce is also to be granted. It has been held that unless a case for divorce is made out, the question of granting judicial separation does not arise. Therefore, the Courts while dealing with the applications for judicial separation shall bear in mind the specific grounds raised for grant of relief claimed and insist on strict proof to establish those grounds and shall not grant some relief or the other as a matter of course. Thus on a petition for divorce, the Court has discretion in respect of the grounds for divorce other than those mentioned in section 13 (1A) and also some other grounds to grant restricted relief of judicial separation instead of divorce straightway

if it is just having regard to the facts and circumstances.

Another question that arises is of decree of maintenance vis-à-vis decree for judicial separation. Where a decree for judicial separation was obtained by the husband against her wife who had deserted him, the wife not being of unchaste character nor her conduct being flagrantly vicious, the order of alimony made in favour of the wife was not interfered with by the Court.

ILR (1964) 2 Punj 732.

The Punjab and Haryana High Court has also held that a reading of sec 24 and 26 (maintenance) does not show that if a petition under section 9, 10 12 or 13 is disposed of, the jurisdiction of the court to award maintenance pendent lite by an order to be passed is taken away.

AIR 1981 Punj 305 ; 1981 Hindu LR 345

The above decisions go on to show that even where a decree for judicial separation is passed in favour of the husband, maintenance may still be awarded to a wife and judicial separation is no defence to a claim for maintenance under Hindu Marriage Act.

Though section 10 of the Hindu Marriage Act does not provide any time as to how long judicial separation can last. But section 13 of the Act provides that if there is no resumption of co-habitation between the parties one year after the decree for judicial separation is passed, the parties can get a decree for divorce on this ground itself. But divorce on this ground will be given only when one year has expired after the passing of the decree for judicial separation and not earlier. The reason for this is that one year is a long period and it provides sufficient time to the parties for reconciliation or to arrive at a decision. If the parties fail to overcome their differences within this period, then there is no fun in allowing the legality of the marriage to just linger on when in substance the relationship of marriage has long expired.

It is to be noted, however, that if the parties do agree to resume co-habitation 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 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.

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HOW TO CALCULATE ALIMONY

Dear Madam,

My answers as follows.

1)what is the max alimony I can claim from him?

Ans: The quantum of maintence must be based of SC judgment which says 25% of salary must be maintenance. Thus it must be calculated as follows

Salary Rs.2 lakhs per month

25% comes to Rs.50,000 multiplied by 12 Months = Rs.6 per year.

If you live for another 20 years it comes to Rs.6 lakhs multiplied by 20 = Rs. 1crore 20 lakhs.

You get total compensation of Rs.1 Crore Rs.20 lakhs.

Kishan Dutt Kalaskar
Advocate, Bengaluru
4405 Answers
112 Consultations

5.0 on 5.0

It is possible.

Payel Ghosh
Advocate, Kolkata
13 Answers

Not rated

If you want to remove him from your lives legally and permanently, are you sure that judicial separation is the right step for you? Shouldnt you be applying for Divorce? As Judicial Separation means that you will still be married to him but have a right to live separately from him.

As far as your query regarding removing him from the house is concerned, it depends. If he is presently occupying the house, then it may be difficult, unless you are able to establish that you paid for the house and his name was added for convenience. Nevertheless, you can file for Injunction restraining him from entering the house.

Radhika Mehta
Advocate, Mumbai
484 Answers
4 Consultations

5.0 on 5.0

If the house property is in the joint names, then it would be difficult to evict him out of the house.

You can very well file a petition seeking judicial separation under section 10 of Hindu Marriage Act 1955 on the grounds that you rely upon by producing the documentary evidences in your support.

T Kalaiselvan
Advocate, Vellore
56549 Answers
695 Consultations

5.0 on 5.0

Can you explain the step wise procedure to attain judicial separation ?

File a petition along with the documents supporting your pleading seeking judicial separation.

Once it is numbered he will be summoned and he would file a counter to it

After that you may have to file affidavit for your chief examination, then your will be cross examined,

After that your husband will examine himself as defence witness, you would have to cross examine him

Once the process is over then your arguments will be heard by the court and then would pass judgment on this.

You can better consult an advocate in the local for all other further details on this.

T Kalaiselvan
Advocate, Vellore
56549 Answers
695 Consultations

5.0 on 5.0

Judicial separation means when a competent court passes an order to husband and wife to cease cohabiting but not dissolving the marriage.

Section 10 of The Hindu Marriage Act , 1955 states:

Either party to a marriage, whether solemnized before or after the commencement of this Act, may present a petition to the district court praying for a decree for judicial separation on the ground that the other party-

(a) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or

(b) has treated the petitioner with such cruelty as to cause a reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for the petitioner to live with the other party; or

(c) has, for a period of not less than one year immediately preceding the presentation of the petition, been suffering from a virulent form of leprosy; or

(d) has, immediately before the presentation of the petition, been suffering from venereal disease in a communicable form, the disease not having been contracted from the petitioner; or

(e) has been continuously of unsound mind for a period of not less than two years immediately preceding the presentation of the petition; or

(f) has, after the solemnization of the marriage, had sexual intercourse with any person other than his or her spouse.

Explanation.-In this section, the expression “desertion”, with its grammatical variations and cognate expressions, means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the willful neglect of the petitioner by the other party to the marriage.

Siddharth Jain
Advocate, New Delhi
4720 Answers
52 Consultations

5.0 on 5.0

You can apply for separation any time.

however once the petition is filed, either you or your husband has to move out of the house. You can file for residence protection orders and then he will be forced to live in alternative accommodation.

Siddharth Jain
Advocate, New Delhi
4720 Answers
52 Consultations

5.0 on 5.0

As you told that the property is jointly owned here its quite not possible for you to move him out of the same while you be sure that your husband also can't make you move from the property, while you can file judicial separation by filling divorce on the part of you, or you can go for judicial separation by mutual consent and here please be sure about the custody of the child as well as be clear about the money transactions if any is still pending... between you and your husband.

In a nutshell you can kick him off from your life by judicial separation and leave him permanently but by showing domestic violence you can't kick him off from your life as the case will not let you be happy.

Biswajit Mandal
Advocate, Barrackpur
4 Answers

Not rated

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