By Preeti Singh
This article examines the scope of judicial innovation in contemporary matrimonial jurisprudence, specifically addressing whether Family Court can and should grant judicial separation based on mutual consent under the Hindu Marriage Act, 1955 (hereinafter referred as HMA). While the statutory scheme of HMA expressly provides for judicial separation on fault-based grounds, it does not expressly prohibit judicial separation by mutual consent. This legislative lacuna, coupled with the absence of any express bar, raises a compelling question of statutory interpretation, judicial creativity, and evolving societal needs.
Matrimonial laws in India, expressly recognises “divorce by Mutual Consent” through dedicated provisions- Section 13B of the HMA, Section 29 of the Special Marriage Act, 1954 and Section 10A of the Divorce Act,1869 (as amended), thereby acknowledging parties’ autonomy as a legitimate basis for dissolving matrimonial ties, but doesn’t explicitly provide for “Decree of Judicial Separation by Mutual Consent”. Section 10 of the HMA, contemplate judicial separation only on enumerated matrimonial faults, creating an impression that mutuality has no role in grant of this remedy.
The Family Courts Act, 1984 marked a paradigm shift in the philosophy of matrimonial adjudication in India. By mandating courts to adopt a conciliatory, non-adversarial, and welfare- oriented approach, encouraging endeavour for settlement even after the institution of proceedings, and consciously moving away from rigid technicalities and formalities, the Act introduced the principles of therapeutic and restorative jurisprudence into family law.
Against this background, the question arises: Should Family courts grant a decree of judicial separation by mutual consent where both spouses expressly declare that they are unable to live together as husband and wife and seek only a formal suspension of marital obligations (without foreclosing future reconciliation)?
The answer ought to be in the affirmative; Family Courts possess the powers to recognise judicial separation by mutual consent— not by bring a new law or inventing a new remedy, but through a harmonious, purposive interpretation of the existing statutory framework, guided by equity, good conscience and the remedial nature of the statue.
LEGISLATIVE SCHEME AND THE SCOPE FOR MUTUALITY
Judicial Separation under Section 10 HMA, is designed as an intermediate remedial stage in matrimonial law- one that alters the rights and obligations of marriage without dissolving the status of husband and wife. The provision enables either spouse to seek a decree of judicial separation on any of the divorce grounds enumerated in Section 13(1) and in case of a wife, the additional grounds under Section 13(2). Once such decree is grant, three legal consequences necessarily follow:
First, the obligation of cohabitation stands statutorily suspended; neither spouse can be compelled to resume conjugal life during the subsistence of the decree.
Second, despite this suspension of conjugality, the status of husband and wife continues to subsist in full—there is no dissolution of marriage, and all status-based rights and liabilities remain intact.
Third, the decree is characterised by its statutorily reversible nature, as Section 10(2) empowers the very court that granted it to rescind the decree upon a petition by either spouse, where reconciliation or altered circumstances satisfy the court that such rescission is just, reasonable, and conducive to restoring the marital relationship.
This structure of Section 10 gives the impression that judicial separation is necessarily an adversarial, contested remedy. However, a close reading of the provision reveals that while it enumerates fault-based grounds, it does not, anywhere, prohibit spouses from approaching the court jointly or from expressing mutual consent to live separately under a formal decree.
The legislative text is silent on the mode of invocation—whether unilateral or mutual. It only specifies the grounds on which a court may grant the decree. In Indian statutory interpretation, the absence of an express prohibition cannot be presumed to create an implied bar, particularly where the statute itself is remedial and designed to offer parties a structured, legally protected separation without dissolving the marriage. Moreover, the scheme of the Hindu Marriage Act after the 1976 amendment reflects a move toward therapeutic and facilitative family law remedies. Judicial separation was deliberately retained as a softer, intermediate remedy—less drastic than divorce, yet sufficiently formal to suspend cohabitation and allow space for reflection or reconciliation. Within this framework, there is no discernible legislative intent to deny spouses the autonomy to mutually seek such a calibrated remedy, especially when both agree that structured separation, rather than immediate dissolution, best serves their circumstances.
The procedural framework under the Family Courts Act, 1984 further strengthens this interpretation. Family Courts are vested with broad powers to adopt non-adversarial methods, encourage settlements, and mould reliefs in a manner that furthers the welfare of the family. If parties can, by mutuality, seek a decree of divorce under Section 13-B, it would be anomalous—and jurisprudentially regressive—to hold that they cannot consensually seek a lesser, non-dissolutive remedy such as judicial separation.
Section 9(1) of Family Courts Act,1984, provides that the in every suit or proceeding before the Family Court, the judge must, in the first instance “endeavour, to assist and persuade the parties in arriving at a settlement in respect of the subject-matter of the suit or proceeding”. This means that matrimonial disputes are to be viewed not merely through the prism of fault/rights but through a lens of rehabilitation, settlement, and potentially structured separation.
Section 10(3) empowers the Family Court to devise its own procedure with the specific objective of facilitating settlement in respect of the subject-matter of the suit or proceedings. The provision frees the Family Court from the rigid confinements of procedural machinery and grants it statutory flexibility to adopt an informal, and the welfare-oriented processes. The statutory reference to “settlement … or … truth”, emphasises the Court’s dual mandate, promoting reconciliation and consensual resolution and adjudicating when reconciliation fails.
Section 20 of the Family Courts Act, 1984 is a powerful non- obstante clause that confers unequivocal overriding effect on the Act. It reads: “Notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act, the provisions of this Act shall have effect.”
Thus, where the procedural framework of the Hindu Marriage Act or the CPC obstructs the legislative mandate of settlement under the Family Courts Act, Section 20 authorises the Family Court to depart from those constraints and adopt a course grounded in justice, equity, and the spirit of the Act.
Section 7(1)(a) and (b) of the Family Courts Act,1984 vests the Family Court with exclusive and comprehensive original jurisdiction to adjudicate upon all matrimonial and family disputes. Consequently, the Family Court is not constrained by the rigid procedural or remedial limitation that ordinary binds civil courts. Rather, it is expressly empowered and indeed obligated to adopt a broad, liberal and purposive construction of its jurisdiction. Such an interpretative approach enables the Court to transcend technical constraints and to meaningfully advance the legislative vision underlying the Act: promoting conciliation, securing speedy and amicable settlement of disputes, minimising adversarial acrimony, and ensuring, where warranted, either the preservation of the marriage or its dignified dissolution.
When the statutory scheme of the Family Courts Act, 1984— particularly Sections 7, 9, 10 and 20—is read as an integrated whole, it becomes clear that the Act not only permits but affirmatively supports the grant of mutual judicial separation.
Our firm, while representing one of our reputed clients, has successfully secured a decree of judicial separation through mutual consent — a relief that appears to have been granted for the first time of its kind. The matter required the Court to consider a matrimonial arrangement wherein both spouses, without acrimony or allegations, mutually elected to live separately while consciously preserving the marital bond. A carefully articulated legal proposition was advanced, premised on a progressive interpretation of matrimonial jurisprudence and the necessity of recognising evolving relationship structures within the framework of the Hindu Marriage Act. The Learned Family Court, Patiala House Court, after due consideration, was pleased to accept and adopt this interpretation, holding that judicial separation through mutual consent is a permissible and meaningful remedy where parties intend separation without dissolution of marriage. The decree therefore represents a noteworthy judicial development that contributes to the jurisprudential evolution of matrimonial reliefs in India.
THE DOCTRINE OF CASUS OMISSUS: BRIDGING LEGISLATIVE SILENCE
Legislative drafting, by its nature, cannot exhaustively anticipate every factual scenario or social contingency that may arise in the administration of justice. Law functions within an evolving and dynamic social landscape, and therefore the existence of legislative lapses—zones of statutory silence or ambiguity—is both natural and unavoidable. Acknowledging this structural limitation, courts have consistently recognised that principled interpretative discretion must operate within these gaps to ensure that statutory frameworks remain functional, coherent, and capable of fulfilling their remedial purpose.
It is in this context that the doctrine of casus omissus acquires relevance. The maxim denotes that while courts ordinarily refrain from supplying omissions in the statutory text, they may bridge a legislative gap where the omission is not the product of deliberate legislative choice, and filling that gap is necessary to effectuate the statute’s purpose, structure, and policy orientation.
This principle does not confer an unfettered power of judicial legislation; rather, it recognises that inherent interpretative authority allows courts to ensure that statutory remedies do not fail merely because the legislature did not expressly articulate every possible permutation of facts. Where the statutory silence threatens to produce an anomalous, unjust, or purposeless outcome, courts may legitimately read the silence in a manner that preserves the coherence of the legislative design.
Accordingly, when a legal scenario falls within the spirit and object of the statute, and the proposed judicial interpretation neither contradicts the textual framework nor introduces foreign elements into the law, the doctrine permits courts to “supply” what the legislature has inadvertently omitted. This approach harmonises judicial function with the overarching aim of ensuring that statutory schemes operate effectively in real-world conditions, without violating the boundary between interpretation and legislation.
MUTUAL JUDICIAL SEPARATION: WHY IT MAKES SENSE
The underlying object of judicial separation under Section 10 of the Hindu Marriage Act, 1955 is to create a lawful “breathing space” within the marital framework—a period during which the obligation of cohabitation stands suspended while the marital bond (vinculum juris) remains intact. This statutory pause is intended to facilitate emotional distance, constructive reflection, professional counselling, and, where possible, reconciliation. When both spouses jointly acknowledge that cohabitation has become presently unworkable, yet express a shared desire to preserve the marital tie, a decree of judicial separation by mutual consent directly advances the legislative purpose of Section 10. It respects individual autonomy, avoids coercive cohabitation, and allows parties to recalibrate their relationship without prematurely dissolving the marriage.
A strictly literal interpretation of Section 10—one that excludes the possibility of mutual judicial separation—creates a rigid and inefficacious outcomes. Spouses would be compelled either (i) to seek divorce by mutual consent under Section 13B, thereby irrevocably terminating the marriage even when they prefer preservation over dissolution; or (ii) to invoke one of the fault grounds under Section 13(1) or 13(1A) solely to sustain a contested petition under Section 10, even in the absence of genuine blame. This forced choice drives parties toward two equally undesirable outcomes: a hasty mutual-consent divorce, often regretted later, or a forced fault-based proceeding premised on exaggerated or manufactured allegations. Such adversarial stance is wholly inconsistent with the conciliatory, welfare-oriented philosophy underpinning the Family Courts Act, 1984.
Judicial recognition of mutual-consent judicial separation would resolve this coercive dilemma and harmonise the remedy with the broader objectives of matrimonial law. It would shield parties the trauma associated with calculated fault-finding, reduce emotional and reputational harm, and preserve the possibility of reconciliation by allowing spouses to disengage without adversarial confrontation. The institutional benefits are equally significant: reduction in frivolous or exaggerated allegations, protection of children from the psychological fallout of contested litigation, avoidance of unnecessary public exposure of intimate disputes, and substantial conservation of judicial time otherwise consumed in evidence, cross-examination, and appellate review. The cumulative effect is a more humane, efficient, and dignity- affirming matrimonial process.
CONCLUSION
In an era when the judiciary is increasingly sensitive to the psychological implications of matrimonial conflict and receptive to the principles of amicable settlement and possibility of reconciliation, a remedy that reduces emotional injury, preserves personal dignity, and remains faithful to the statutory purpose of judicial separation is not merely desirable—it is imperative. The recognition of mutual judicial separation does not amount to judicial legislation; rather, it constitutes a principled and purposive reading of the existing statutory scheme, informed by the compassion, flexibility, and conciliatory ethos embedded in the Family Courts Act. The statutory silence in Section 10 of the Hindu Marriage Act cannot be construed as a prohibition. Instead, it must be viewed as a legislative gap that courts are institutionally empowered to address through equitable, beneficial, and contextually responsive interpretation.
In a matrimonial landscape marked by emotional complexity, psychological vulnerability, and a growing emphasis on individual autonomy, consensual judicial separation offers a humane and dignified alternative to adversarial litigation or premature divorce and perfectly aligns with the objectives of the Hindu Marriage Act, 1955.
Accordingly, embracing this interpretative development would not only equip Family Courts to respond more effectively to contemporary marital realities but would also contribute meaningfully to the progressive and humane evolution of Indian matrimonial jurisprudence.
—Preeti Singh is an Advocate with PS Law Advocates & Solicitors
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