Judicial Separation in India

Judicial separation is a period that comes before divorce. It is a period of separation mandated by the court before the divorce proceedings can be started. Under all personal laws, the judicial separation period is for one year. It is the final opportunity provided to couples for resolving their differences, This article provides and understanding of judicial separation procedure in India.

Fri Apr 29 2022 | Family Law | Comments (0)

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In India, a marriage ceremony is considered to be one of the most essential and auspicious arrangements between a man and a woman. The religious duties of marriage, according to sacred Hindu religion, is that of a permanent connection between the husband and the wife which is unbreakable and endless in nature, valid not only for the present lifetime but for numerous future  lifetimes . This ceremony is thus performed with utmost religious practices and rituals.

However, it can clearly be determined that under this ancient regimen for marriage, there existed no form of any consent of either of the parties regarding practical and day-to-day issues which may occur during the tenure of marriage, which are well beyond religious customs. Thus, the Hindu Marriage Act was incorporated in order to provide justifiable rights to married individuals and it even gave options for revoking  marriage under specific sections with limits and bounds, which either parties are free to consider.

Section 12 of the Hindu Marriage Act provides that any marriage is voidable if the following conditions are satisfied:

  • Either party is impotent or unfit for the procreation of children.
  • Conditions given under clause (ii) of Section 5, which are given below:
  1. When either party gives consent in the form of an unsound mind at the time of marriage.
  2. Capable of giving a valid consent as such unfit for the procreation of the child while he/she has been suffering from a mental disorder.
  3. Either party is subjected to the habitual attack of mental disorder.
  • In case the marriage occurred without the consent of the bride or her parent or guardian and under undue pressure.
  • If the bride was pregnant by another man other than the bridegroom at the time of the marriage.

Moreover, Section 11 of the Hindu Marriage Act,1995 provides that a marriage is void if the clauses (i), (vi), (v) of Section 5 are not satisfied. The clauses are given below:

  • Either party shouldn’t have any other living spouse at the time of the marriage.
  • Either party should not fall within the degree of prohibited relationship which is provided under Section 3(g) of the Hindu Marriage Act,1955.
  • There should not be the Sapinda relationship between the spouses.

Thus, in keeping with practicality, the advanced concept of marriage is more contractual in nature. As of today, it is an established opinion of the people that marriage needs to be operative in nature and must arise out of the mutual consent and agreement of both parties.

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 ahead  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.  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. The period of judicial separation is two years and gives time for introspection and resolving the matrimonial disputes and misunderstanding between the couple.

Grounds for Judicial Separation in India

The following are 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  spouse on religious or spiritual grounds.
  • Child marriage – Either of the spouses is married without his/her consent before attaining 18 years of age.

Filing petition for Judicial Separation

The Hindu Marriage Act, 1955 provides for lawful judicial separation under section 10 for both the spouses , who are married under the said section. This means that they are entitled to claim  relief via  judicial petition by filing  a petition and once the order for the same has been passed, they are not liable to cohabitate.

Furthermore, either of the parties to the marriage, who has been hurt by the other party, is entitled to file for the judicial separation at a District Court under Section 10 of the Hindu Marriage Act, 1955. However, the following essentials are required to be fulfilled for the same:

  • The said marriage between the husband and wife must be celebrated properly under Hindu marriage Act, 1955.
  • The respondent is required to be settled within the jurisdiction of the court where the petitioner filed the petition.
  • It is essential for the husband and wife to have lived together for a specific period of time prior to filing of the said petition.

Each petition, as per, Order VII Rule 1 of the Civil Procedure Code, 1973 must disclose the following details and adhere to them:

  • The date and place of marriage.
  • The person is required to be a Hindu, by his/her affidavit.
  • Name, status, address of both the parties
  • Name, DOB and gender of children(if any).
  • All requisite details of litigation prior to filing the decree for judicial separation or divorce.
  • For the judicial separation, the evidence must prove the grounds stated above for the same.

Difference between Judicial Separation and Divorce

Although the procedure of dealing defended and undefended proceedings for both judicial separation and divorce are similar,  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  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  and  one of the spouses dies, then the existing spouse will not  benefit out of it and thus the property will devolve.

Hence, Judicial Separation is a process wherein, the Court provides a final opportunity  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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