Some married couples never get as far as divorce, but are happy to stay apart.
Judicial separation is a state of marriage authorized by the court where a husband and wife do not live like a married couple. In many situations it becomes impossible for either spouse to live with the other person. At the same time, they either do not want a divorce or do not have enough ground for divorce. Legal separation (sometimes “judicial separation”, “separate maintenance”, “divorce a mensa et thoro”, or “divorce from bed-and-board”) is a legal process by which a married couple may formalize a de facto separation while remaining legally married. A legal separation is granted in the form of a court’s order, which can be in the form of a legally binding consent decree. In such a situation, court may grant a decree of judicial separation.
The statutory law of Hindus, Parsis and Christians recognizes the matrimonial relief of judicial separation. It is also recognized by the Special Marriage Act, 1954. Muslim law does not recognize anything like it. Probably in the case of non-Hindus and non-Muslims, the high courts have inherent jurisdiction to provide the relief. Persons belonging to any community are free to enter into separation agreements under the general law of contract.
The grounds on which judicial separation may be granted differ widely from statute to statute. Under the Special Marriage Act, 1954, it may be obtained on any ground on which divorce can be obtained under section 27 as well as on the ground that the respondent has failed to comply with the decree of restitution of conjugal rights. Similarly, under the Parsi Marriage and Divorce Act, 1936, judicial separation may be granted on any ground on which divorce may be obtained as well as on the ground that the defendant has been guilty of such cruelty to him or her or their children, or has used such personal violence, or has behaved in such a way as to render it, in the judgment of the court, improper to compel him or her to live with ‘defendant’. Under the Indian Divorce Act either party may obtain a decree of judicial separation on the ground of ‘adultery or cruelty or desertion without reasonable excuse for two years or upwards.’
Under the Hindu Marriage Act the grounds of judicial separation are given more elaboration. The reason seems to be that the grounds, which are conventionally considered grounds of divorce, are recognized only as grounds of judicial separation. Section 10 lays down six grounds, viz. continuous desertion of at least two years (willful neglect is included in the definition of desertion), cruelty, virulent leprosy of at least one year’s duration, venereal disease in a communicable form of at least three years’ duration, continuous insanity of at least two years and respondent having’ sexual intercourse with any person other than his or her spouse’. The last ground would include adultery as well as non-consensual intercourse. Cruelty has been interpreted considering the wide meaning given in western countries as well as considering Indian conditions. Desertion includes actual, constructive and willful neglect. Under the Marriage Laws (Amendment) Act 1976, now a party to a marriage may seek judicial separation on any ground on which he or she is entitled to divorce.
Section 10 of the Hindu Marriage Act, 1955:
(1) Either party to a marriage, whether solemnized before or after the commencement of this Act, may present a petition praying for a decree for judicial separation on any of the grounds specified in sub-section (1) of section 13, and in the case of a wife also on any of the grounds specified in sub-section (2) thereof, as grounds on which a petition for divorce might have been presented.
(2) Where a decree for judicial separation has been passed, it shall no longer be obligatory for the petitioner to cohabit with the respondent, but the court may, on the application by petition of either party and on being satisfied of the truth of the statements made in such petition, rescind the decree if it considers it just and reasonable to do so.
Grounds for Judicial separation are same as given in section 13(1), which are applicable for divorce. A wife has the grounds given in section 13(2) as well. These are given below under Divorce.
Section 13 of the Hundu Marriage Act, 1955:
Grounds for Divorce:
(i) has, after the solemnization of the marriage, had voluntary, sexual intercourse with any person other than his or her spouse ; or
(ia) has, after the solemnization of the marriage, treated the petitioner with cruelty; or
(ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or
(ii) has ceased to be a Hindu by conversion to another religion; or
(iii) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent. Explanation.-In this clause,- (a) the expression “mental disorder” means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia; (b) the expression “psychopathic disorder” means a persistent disorder or disability of mind (whether or not including sub-normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party, and whether or not it require or is susceptible to medical treatment; or
(iv) has been suffering from a virulent and incurable from of leprosy; or
(v) has been suffering from venereal disease in a communicable from ; or
(vi) has renounced the world by entering any religious order; or
(vii) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive Explanation- In this sub-section, the expression “desertion” means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the willful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly.
Section 13(2) Additional grounds for wife:
(i) Another wife of the husband is alive.
(ii) Rape, Sodomy, Bestiality.
(iii) Wife was awarded maintenance under section 18 of the HAM, 1956 or under Section 125 of CrPC and no cohabitation has occurred for 1 yr after the award.
(iv) If wife was under 15 at the time of marriage and if she repudiates the marriage before 18. Section 13(1A) Either party to a marriage, whether solemnized before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground-
(i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of one year or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties;
Judicial Separation under Special Marriage Act, 1954
We may now have a look at the provisions of the Special Marriage Act, 1954 which applies only to marriages solemnized under that Act. Section 23 of the Act enables the husband or the wife to present a petition for judicial separation-(a) on any of the grounds specified in sub- section (1) and sub-section (1-A) of section 27 on which a petition for divorce might have been presented; or (b) on the ground of failure to
comply with a decree for restitution of conjugal rights.
Judicial Separation under Christian Law
Section 22: Bar to decree for divorce a mensa et toro; but judicial separation obtainable by husband or wife. No decree shall hereafter be made for a divorce a mensa et toro, but the husband or wife may obtain a decree of judicial separation, on the ground of adultery, or cruelty, or desertion without reasonable excuse for two years or upwards, and such decree shall have the effect of a divorce a mensa et toro under the existing law, and such other legal effect as hereinafter mentioned. Application for separation made by petition: Application for judicial separation on any one of the grounds aforesaid, may be made by either husband or wife by petition to the District Court or the High Court; and the Court, on being satisfied of the truth of the statements made in such petition, and that there is no legal ground why the application should not be granted, may decree judicial separation accordingly.
Judicial Separation under Parsi Law
Section 34 provides for judicial separation on any of the grounds on which divorce could be sought; or on the ground that the defendant has been guilty of such cruelty to him or her or to her children or has used such personal violence, or has behaved in such a way as to render it in the judgment of the court improper to compel him or her to live with the defendant. It will be noticed here that under the Parsi Marriage and Divorce Act also, mutual consent and irretrievable break down of marriage are not grounds of divorce though a decree for judicial separation may be followed by a decree of divorce if the parties have not had marital intercourse for three years or more since such decree or order.
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
Difference between Judicial Separation Explain and Divorce.
>> Section 10 – Marriage still exists therefore cannot remarry, cannot do adultery etc.
>> Not obligatory for the petitioner to cohabit with the partner.
>> Can be rescinded by petition of either party if court is satisfied.
>> Section 13 – Marriage ends. Parties can remarry subject to provisions of Section 15 of the Hind. Marriage Act, 1955.
>> Permanent Legal Separation
>> Once decree of Divorce is granted, it cannot be undone.
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
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