As
per section 18 (i) of the Foreign
Marriage Act, 1969, the provisions of Chapter IV, V, VI and VII of the Special Marriage Act,
1954, are applicable to the foreign
marriage solemnized under the Foreign Marriage Act, 1969.
Section 23 of the Chapter V of Special Marriage Act, 1954 deals about judicial separation.
Thus a party to foreign marriage (either husband
or wife) may present a petition for judicial separation in the district court
on the ground mentioned in section 27(1) and (1A):
The grounds of Judicial separation are that the
other spouse:
(i) has, after the solemnization of the
marriage, had voluntary done sexual intercourse with any person other than his
or her spouse; or
(ii) has deserted the petitioner for a continuous
period of not less than two years immediately preceding the presentation of the
petition. The expression" desertion" means 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]; or
(iii)
is undergoing a sentence of imprisonment for
seven years or more for an offence as defined in the Indian Penal Code, 1860;
(iv)
has since the solemnization of the marriage
treated the petitioner with cruelty; or
(v) 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 respondent.
(vi) has been suffering from
venereal disease in a communicable form; or.
(vii)
has been suffering from leprosy, the disease not
having been contacted from the petitioner; or
(viii) has not been heard of as being alive for
a period of seven years or more;
(ix) has failed to comply with a decree for
restitution of conjugal rights;
A wife may also present a petition for judicial
separation on the ground that:
(i) her husband has, since the solemnization of the
marriage, been guilty of rape, sodomy or bestiality;
(ii) in a suit under section 18 of the Hindu Adoptions and Maintenance Act, 1956, or in a proceeding under section 125 of
the Code of Criminal Procedure, 1973, a decree or order, as the case may be,
has been passed against the husband awarding maintenance to the wife
notwithstanding that she was living apart and that since the passing of such
decree or order, cohabitation between the parties has not been resumed for one
year or upwards.
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.
Where petition can be presented
As per section 18 of the Foreign Marriage Act, 1969, the petition shall be presented to the district court within the local limits of whose ordinary civil jurisdiction -
(a) the respondent is residing at the time of the presentation of the petition ; or
(b) the husband and wife last resided together; or
(c) the petitioner is residing at the time of the presentation of the petition, provided that the respondent is at that time residing outside India.
Meaning of District Court
The term “district court” has the same meaning as in the Special Marriage Act, 1954.
(i) in any area for which there is a City Civil Court, and in any other area, the principal Civil Court of original jurisdiction is situated
(ii) It includes any other Civil Court, which may be specified by the State Government by notification in the Official Gazette as having jurisdiction in respect of the matters dealt with in this Act:
Petitioner must be residing in India at the time of presenting petition
As per section 18 (3)(d) of the Foreign Marriage Act, 1969, nothing contained in this section shall authorise any court to grant any other relief under Chapter V or Chapter VI of the Special Marriage Act, 1954 except where the petitioner residing in India at the time being of the presentation of the petition.
Thus the petitioner must be residing in India for presenting petition for judicial separation.
Court cannot grant any relief, if in relation to any marriage of foreign country not solemnized under it, if the grant of relief in respect of such marriage (whether on any of the grounds specified in the Special Marriage Act,1954, (45 of 1954) or otherwise) is provided for under any other law for the time being in force.