Judicial Separation in India

A blissful marital life is a sheer result of unconditional love, faith, belief, passion and determination between couples who ensure to stay together in every phase of life. But things turn out ugly when both the spouses experience lack of interest, mistrust, misunderstandings, differences, etc… amongst one another. Unfortunately, this results in the couple filing for Divorce. But the eyes of law believe in giving an opportunity to couples in the form of Judicial Separation. 

What is meant by Judicial Separation in India

Judicial Separation is a provision under the Indian marriage laws, wherein both the husband and the wife get an opportunity to introspect about giving a chance to their marriage, before going on with the divorce proceedings. Under a decree of Judicial Separation, both the parties live separately for a period of time getting adequate space, independence and time to think about continuing their marriage or not.  During this phase, both the parties still carry the same legal status of being husband and wife and yet at the same time live separately also.

Grounds for Judicial Separation in India

 

The following grounds on which Judicial Separation can be granted:
  • Cruelty – Either of the spouse or both are cruel for one another. 
  • Desertion – Either of the spouses is not alive and is missing since seven years and above. 
  • Adultery – Either of the spouses is being cheated upon by other spouse. In case a husband or a wife knows that their respective spouse is married and that the other person is alive during this petition; then the grounds for judicial separation strengthens. 
  • Forced conversion of religion – Either of the spouses is forcing the other one to change and convert his/her religion. 
  • Incurable diseases such as leprosy, cancer, Ebola, etc… 
  • Insanity or abnormality – Either of the spouses is not in a sound condition. 
  • Venereal or sexual diseases – Either of the spouses is suffering from sexual diseases such as HIV, AIDS, Genital Herpes, Syphilis, etc… 
  • Rape, Sexual Harassment, Molestation, Bestiality and Sodomy. 
  • Renunciation of the world by either of the spouse on religious or spiritual grounds.
  • Child marriage – Either of the spouses is married without his/her consent before attaining 18 years of age. 

Difference between Judicial Separation and Divorce


Although the procedure of dealing defended and undefended proceedings for both judicial separation and divorce are similar, yet there are certain differences between them.  Explore them as follows:
  • Judicial Separation does not terminate marriage whereas in divorce the parties are no more husband and wife and hence the marriage ends. 
  • While undertaking proceedings for judicial separation, the court does not have to consider that the marriage is permanently closed or broken down whereas in divorce it is required while presenting the petition. 
  • Both the parties can file for judicial separation any time post marriage whereas in case of divorce the parties can only file for divorce only after completion of one year of marriage. 
  • A judicial separation goes through one stage judgment procedure however; divorce goes through a two stage judgment process. 
  • There are certain provisions in Matrimonial Causes Act 1973 that are applicable to divorce but are not applied to judicial separation petitions irrespective of going through a two or five year separation period. 
  • Judgments with respect to Wills are not applicable in case of Judicial separation. In case the parties are undergoing a separation time and if one of the spouse dies then the existing spouse will not be benefited out of it and thus the property will devolve. 
Hence, Judicial Separation is a process wherein, the Court provides a final turn to a couple seeking divorce, to try resolving their differences by living separately, before the initiation of divorce proceedings. This gives time for introspection and resolving the matrimonial disputes and misunderstanding between the couple.

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