meaning

In Indian Society, marriage is considered as a sacrament. It is an irrevocable relationship between husband and wife established through rituals and customs. Before 1955,there was no relief available to either party in case of a failed marriage. They had to continue with the marriage and couldn’t break the marriage. After the passage of Hindu Marriage Act, 1955 things changed in favor of both parties to the marriage. Now, in case of a failed marriage, the parties do not need to suffer in the marriage and can easily break their matrimonial alliance through Judicial Separation or by a decree of Divorce.

Judicial separation is defined as a legal process which allows parties in a marriage to formalize a de facto separation / be legally separated without the commission of any matrimonial offence.

The Marriage Laws (Amendment) Act, 1976 makes the ground for judicial separation and divorce common. It is upon the parties to choose between the two methods of dissolution. The legal effect of judicial separation and divorce is however different. A divorce puts the final nail in the coffin of marriage where as judicial separation leaves the scope of settlement between parties.

Section 10 of the Act file a petition for judicial separation. After a decree is passed in favor of the parties, they are not bound to cohabit with each other.Some matrimonial rights and obligation, however, continue to subsist. They cannot remarry during the period of separation. They are at liberty to live separately from each other. Rights and obligations remain suspended during the period of separation. The grounds for judicial separation are same as for divorce. Under Section 13(1), judicial separation may be sought on the following

Grounds:

1. Adultery: If other spouse had a voluntary sexual intercourse with any person other than his or her spouse after solemnization of marriage.

2. Cruelty: If after solemnization of marriage, one of the spouse treats the other with cruelty.

3. Desertion: If the other party has deserted the spouse for a continuous period of years without any reasonable ground immediately preceding the presentation of the petition.

4. Conversion: If one of the spouses has ceased to be a Hindu.

5. Insanity: If the other party is of unsound mind or has been suffering continuously from mental disorder of such a kind and to such an extent that the petitioner cannot live with the other party.

6. Leprosy: If the other party has been suffering from a virulent and incurable form of leprosy.

7. Venereal disease: If the other party has been suffering from venereal disease in a communicable form.

8. Renounced the world: If the other spouse has renounced the world by entering any religious order.

9. Has not been heard alive for seven years.

In addition to these grounds some of the grounds are exclusively reserved for women:

1. Bigamy: Bigamy is the state where one person is married to two people at the same time. In the situation the other party can file the petition for judicial separation on the ground that his or her partner is married to another person.

2. Guilty of rape, bestiality or sodomy: The wife can file the petition for the judicial separation if her husband is guilty in the case of bestiality, rape or sodomy.

3. Repudiation of marriage: If the marriage of a girl is solemnized before the age of fifteen years, the girl can ask for the decree of separation. It will not affect the petition that the marriage was consummated or not.

Advantages of judicial separation

 The decree of judicial separation can be used to take the divorce

 Benefits from the military can be kept.

 It gives some time to the spouses to enjoy life without staying with their spouse.

 It gives them time to the spouse to think that is they really want to breakdown the marriage or not.

 The parties get the chance to take the advice from their parents or relatives or any wise person who can advise for a better future.

Disadvantages of judicial separation

 It is as complex as taking divorce

 The spouses feel so much stress as divorce.

 It can be unnecessary for the relationship

What is the purpose of a judicial separation?:

Judicial Separation is a step prior to a divorce. The purpose of judicial separation is to provide an opportunity to the parties to reconcile their difference

The Effect of a Decree of Judicial Separation:

(a) The parties are no longer bound to co-habit with each other.

(b) If either party dies Intestate whilst the Decree is in force and the separation is continuing, his or her property devolves as if the other party to the marriage had been dead.

(c) Marriage between the parties still exists therefore they cannot remarry. If either party remarries, has committed offence of bigamy punishable under Section 494 & 495 of Indian Penal Code.

(d) If a woman is judicially separated, her husband cannot have sexual intercourse with her without her consent. If he does, he can be prosecuted under section 376-A of the IPC. Note that consent under pressure (e.g. because of threats to injure or to stop paying maintenance) is not considered valid.

(e) A Decree of Judicial Separation is not a bar to a subsequent Divorce.

When can petition for judicial separation be filed?

Both the parties can file for judicial separation any time post marriage, whereas in case of divorce, the parties can only file for divorce after completion of one year of marriage.

Can I marry after judicial separation?

Judicial Separation does not allow spouses to remarry. After divorce, the parties can remarry. A petition for judicial separation can be filled at any time after the marriage. The parties have to wait for one year from the time of solemnization of marriage, before filing the petition of divorce.

What to do in case after judicial separation where the parties want to resume cohabitation?

Since a decree for judicial separation is a judgment in rem, if the parties want to resume cohabitation, it is necessary for them to get the order of judicial separation annulled by the court. Normally, the court rescinds the degree on presentation of the petition by consent of both the parties.

Consideration by Court

It has also to be kept in mind that before granting the prayer to permanently snap the relationship between parties to the marriage every attempt should be made to maintain the sanctity of the relationship which of importance not only for the individuals or their children but also for the society (Section 23). It would be too hazardous to lay down a general principle of universal application Hirachand Srinivas Managaonkar v. Sunanda, AIR 2001 SC 1285.

Alternate Relief

Section 13-A of the Hindu Marriage Act, 1955 prescribes alternate relief in Divorce Proceedings. As per this Section, If any proceeding under this Act, on a petition for dissolution of marriage by a decree of divorce, except in so far as the petition is founded on the grounds mentioned in clauses (ii), (vi) and (vii) of sub-section (1) of Section 13, the court may, if it considers it just so to do having regard to the circumstances of the case, pass instead a decree for judicial separation.

Difference between Judicial Separation and Divorce.

JUDICIAL SEPARATION	DIVORCE
Can file a petition at any time post marriage	Can file only after completion of one year of marriage.
Only one stage of judgement. If grounds are satisfied, decree granted.	Judgement is a two-step process. First reconciliation, then divorce.
Temporary suspension of marriage.	Brings marriage to an end.
Cannot remarry after the passage of decree	Can remarry once decree in favor of divorce is passed.
It is a ground for divorce. A single instance of adultery sufficient for Judicial Sep	Living in an adulterous relationship necessary.
The possibility of reconciliation.	No possibility of reconciliation.

How to file a petition for divorce or judicial separation?

A petition for divorce or judicial separation can be filed in a district court within the jurisdiction of whose:

The marriage was solemnized.

The respondent, at the time of presentation of petition, resides.

The parties to marriage last resided together.

The petitioner is residing, in case the respondent is outside territory of India.

Under Section 21 of the Act,all proceedings under this Act shall be regulated by the Code of Civil Procedure.

Under order VII, rule 1 of CPC every petition for divorce or judicial separation must contain:

The place and date of marriage

Affidavit of being a Hindu

Name, status, and domicile of husband and wife.

Name of children, their sex, and date of birth.

Full particulars of any litigation filed before the presentation of the petition for divorce.

Evidence of the grounds for divorce or judicial separation. For example- in case of cruelty, specific act of cruelty, medical report, place of cruelty, etc.

After filing of the petition, the other party is summoned. Both the parties are required to furnish evidence to strengthen their claim. After furnishing of evidence is over,the judge hears the argument of each side and passes a decree. Appeals against the decision of the lower court can be made in a higher court.

Case laws:

In the case of Vimlesh V. Prakash Chandra Sharma, AIR 1992 All 260 In the court held that a single instance of cruelty is not so grave to pass a decree of divorce. Thus, the court granted a decree of judicial separation to provide an opportunity for the parties to reconcile.

In Subbarama Reddiar v. Sakaswathi Ammal (1966) 79 LW 382 (Mad) (DB)., the Madras High has exhaustively discussed about the nature and scope of Judicial Seperation (here in relation to ground of Adultery) and has observed that on grounds specified under Section 13 of the Hindu Marriage Act, 1955 if a spouse seeks judicial separation the same may be granted when the petitioner spouse successfully proves the adulterous relation.

 In Trimbak Narayan Bhagwat v. Kumudini Trimbak Bhagwat AIR 1967 Bom 80, the Bombay High Court held that the aggrieved wife is entitled to get a decree of judicial separation and defence of insanity is no good defence

Conclusion:

judicial separation means to separate spouse to each other for some period legally. After a decree is passed in favor of the parties, they are not bound to cohabit with each other. Some matrimonial rights and obligation, however, continue to subsist.They cannot remarry during the period of separation. While in diverse case parties are free to to marriage.It is a ground for divorce.