Separation by agreement

Question asked on: 28/08/2015

Can we live separate by our agreement instead of a decree of judicial separation?

Advised by: Shivendra Pratap Singh,

Parties to the marriage want to live separate without filing a petition of judicial separation or divorce they can do so by an agreement called separation by agreement. Parties are not under legal obligation to perform any marital duties during the subsistence of this agreement.

However Hindu Marriage Act (from now on said the Act) is silent towards this agreement but Act also does not make it void, so this agreement is valid between the parties. This agreement does not amount to divorce, but it suspends all the marital obligation between husband and wife until it is not revoked by the parties.

This type of agreement was recognized in Hindu law before this Act. It was generally called “chhutti-chhutta,” and it was widely prevalent among lower caste. It continues to be so even now. This is a swift and peaceful procedure to live separate and to avoid the constitution of a ground of divorce, i.e., desertion. Parties to the agreement cannot be called deserted by others.

Generally, parties make some arrangements towards the amount of maintenance, custody of children, prevent another party to file any petition, etc. However, this agreement cannot abridge or takes away any right which is provided by law. Parties to the agreement can file a petition for maintenance under section 125 of Cr.P.C. or section 25 of the Act. Section 18(2) of the Hindu Adoptions and Maintenance Act 1956 is also applicable to them regarding maintenance for wife living separately from the husband.

When conditions of the parties became changed after the agreement, and such condition requires enforcing other legal rights, then the party can enforce it notwithstanding that it is prevented by the agreement. In Thakur vs. Dharma, it is held by the Allahabad High Court that court can interfere in the matter which is prevented by agreement if the condition of the parties justifies such inference of the court.

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