Judicial separation is a decree, through which either party to the marriage seeks to remove the obligation of co-habitation with the other, not necessarily proving that their marriage has irretrievably broken down. It is a legal way to live separately from the spouse, without obtaining a decree of divorce. Judicial separation does not dissolve the marriage but merely allows you to stay separately while being endured as legally married. Moreover, a decree of judicial separation does not give you the right to remarry.
Unlike Divorce, Judicial Separation does not require the parties to wait for one year from the time of solemnization of marriage to file the petition. It can be filed any time after the marriage. Under Section 13 of the Hindu Marriage Act, 1955 a divorce can be sought on the ground of the judicial separation decree only after it elapses one year, without resumption of cohabitation.
In Judicial Separation proceedings, the court shall pass orders with regards to custody and access to children, the payment of maintenance and lump sums, the transfer of property, the extinguishment of succession rights, etc. Concisely, the power to pass financial orders vests with the court.
“Section 376B of the Indian Penal Code provides punishment for sexual intercourse by a man with his wife without her consent during judicial separation.”
Grounds for judicial separation in India
Section 10 (1) of the Hindu Marriage Act, 1955 states that “Either party to a marriage, may present a petition praying for a decree for judicial separation on any of the grounds mentioned in Section 13 of the said Act.”
- Adultery – When either of the spouses committed cheating and had voluntary sexual intercourse with any person other than their spouse after the marriage. A single instance of adultery is sufficient to file a Judicial Separation petition.
- Cruelty – When one of the spouses treats the other with cruelty or aggressive nature, which causes danger to life or health either physically or mentally.
- Desertion – When one of the spouses to the marriage abandoned the other without a reasonable cause and consent for a continuous period of two years, immediately preceding the presentation of the petition.
- Insanity/Unsound mind – When one of the spouses is of unsound mind or has been suffering constantly from an incurable mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent any further.
- Forced Conversion of religion – When one of the parties to the marriage has been continuously insisting or forcing the other to change or convert his/her religion.
- Disease – When either the husband/wife has been suffering from a virulent or incurable disease such as leprosy, cancer, Ebola, etc., which might be of communicable form.
- Venereal/Sexual diseases – When either of the spouses is suffering from sexual diseases such as HIV, AIDS, Genital Herpes, Syphilis, etc.
- Renounced the world – When one of the parties has relinquished the world either through religious or spiritual grounds.
- Child marriage – Either of the spouses is married without his/her consent before attaining 18 years of age.
- Presumed dead – When one of the parties to the marriage has not been heard of being alive for a continuous period of seven years.
Additional grounds for the wife
- Bigamy – If the marriage has been solemnized before the commencement of the Hindu Marriage Act, 1955, the wife can file a petition for judicial separation if her husband had remarried provided that the other wife is alive during the time of presentation of the petition.
- Rape, Sodomy or Bestiality – A wife can seek judicial separation if her husband has been guilty of an offense like rape, sodomy or bestiality.
- Repudiation of marriage – If a girl is married before she reaches the age of puberty or before she attains 15 years, she can renounce that marriage after completing the age of 15 years.
- Non-resumption of co-habitation – The wife can seek judicial separation if the cohabitation between the parties has not been resumed for around one year or more, following an award of maintenance made by any court against the husband and in favor of the wife.
Difference between Judicial Separation and Divorce
| Judicial Separation | Divorce |
| A judicial separation is a legal process which removes the obligation of cohabitation, despite being legally married. | A divorce is a legal dissolution of marriage by the court |
| Marriage does not come to an end. | Marriage between the parties comes to an end. |
| The court does not have to consider that the marriage is permanently broken down. | The court will consider the fact that the marriage has been permanently broken down and that there has been no scope to reconciliation. |
| 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. |
| Judicial separation involves only one judgment procedure. | Divorce involves two judgment procedure, one when the petition is filed and the other post 6 months. |
| Judgments concerning Wills are not applicable in case of Judicial separation. | Divorce includes judgments of wills. |
Procedure for Judicial Separation
Section 10 of the Hindu Marriage Act, 1955 specifies the provisions for the grounds of judicial separation and states that ‘it is no longer obligatory for the petitioner to cohabit with the spouse after the decree has been passed.’
However, any time after the grant of a decree under Section 10 of HMA, the parties can apply in the court to rescind/annul the decree, if they agree to resume their co-habitation.
Section 10(2) of HMA, grants power to the court to rescind the judicial separation decree if it deems fit.
Under Section 21 of the Act, all the proceedings under this Act shall be regulated by the Code of Civil Procedure.
Order VII, Rule 1 of the Code of Civil Procedure, provides the provisions of details to be mentioned in the Judicial Separation petition, which involve:
- Date and place of marriage.
- Name, status and domicile of both the parties.
- Details of their children.
- Evidence of the grounds for judicial separation.
- The relief being claimed.
- Details of litigation filed before filing a decree for judicial separation.
1. A Petition under Section 10 of the Hindu Marriage Act, may be filed by either party to marriage seeking a decree of Judicial Separation relying on the grounds mentioned in the Act. The petition shall be filed in a district court within the jurisdiction as mentioned below:
- Where the marriage was solemnized.
- Where the Respondent was residing at the time of presentation of the petition.
- Where the parties to the marriage have last resided together.
2. After the petition is filed by one of the parties, the summons is passed to the other party.
3. Both parties are required to furnish evidence to strengthen their claim.
4. The judge hears the argument of each side and passes a decree.
5. If the Court considers it just and reasonable to do so and upon being satisfied with the truth, it may pass the Decree of Judicial Separation.
Section 13 of the Hindu Marriage Act, 1955 provides that if there is no resumption of cohabitation between the parties even after one year after the decree for judicial separation is passed, the parties can obtain a decree for divorce on the same ground. Hence, Judicial Separation provides a chance to the parties seeking a divorce, to try resolving their differences by living separately, before the initiation of divorce proceedings.
Case Laws
- In Sohan Lal vs. Kamlesh, the High Court of Punjab and Haryana held that in case of judicial separation, if a wife is not able to maintain herself, she is entitled to claim for maintenance from the husband.
- In Manisha Tyagi vs. Capt. Deepak Kumar, the Petitioner (husband) was granted a divorce by the District Court and the High Court, by alleging cruelty by the wife. However, the Respondent (wife) appealed to the Supreme Court. The bench found that there is a lack of evidence proving cruelty and granted an order of judicial separation, to give them a chance to reconcile.
- In Gomathi vs. Kumaragurrupaan, it was held that where a decree of judicial separation has been passed and the parties did not resume their cohabitation even after one year of the passing of such decree, a petition for divorce can be filed. The period of one year shall be calculated from the date of the original order of the trial court.
- In Narasimha Reddy vs. M Boosamma, it was held that the decree of judicial separation does not end the marital status of the parties.
This article is written by M Nikitha. The author can be contacted via email at nikitha@bnblegal.com
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