People often confuse legal separation (also known as judicial separation) with divorce but they both are very much different. When you get a legal separation then you live away from your spouse and are no longer bound to cohabit under the same roof as husband and wife. Spouses often use this as a means to revisit their decision and introspect before filing for divorce. Legal separation as the name suggests is a separation that is decreed by the court of law and here, your spouse cannot claim that he/she has been deserted by you or not can he/she force you to cohabit.
What is judicial separation?
Judicial separation under the Hindu Marriage Act, 1955, is a decree of legal separation of the husband and wife by the court. Judicial separation allows disgruntled couples to live separately for a specific amount of time and is often used as a last resort before filing for divorce. However, you cannot merely file for judicial separation without any cause, i.e. you need to have a reason to ask the court for separation from your spouse. Like a contested divorce, when you file for judicial separation, you are required to prove the ground on which you have filed for separation. The following are the grounds available for judicial separation under the Hindu Marriage Act, 1955:
i. Cruelty: Cruelty can mean a variety of things from physical to mental harassment. If you have been inflicted with physical, mental, emotional, financial pain, etc. then you can file for judicial separation under cruelty meted out to you.
ii. Desertion: Desertion implies the complete rejection of the matrimonial alliance and the obligations that are associated with it. If your spouse has forsaken you, then you can file for judicial separation for being deserted by your spouse.
iii. Adultery: Adultery may no longer be a criminal offence but it is still a ground for judicial separation and divorce. If your spouse has been in an adulterous relationship then you can get a legal separation on this ground.
iv. Conversion of religion: If your spouse has undergone a conversion of religion after the marriage then it serves as a ground to ask for a judicial separation.
v. Unsoundness of Mind: If your spouse is suffering from unsoundness of mind or a mental disorder which is incurable in nature then it is one of the grounds to seek judicial separation.
vi. Venereal disease: If your spouse is suffering from a venereal disease which is communicable then it is also one of the grounds to seek separation from your spouse.
vii. Renunciation of the world: In a case where your spouse has renounced the world (e.g. taken a vow of celibacy), then you can seek legal separation from your spouse.
viii. Presumption of death: Presumption of death means that your spouse has not been heard of or that his whereabouts are unknown for seven years or more.
ix. Additional grounds available to only the wife: The following three grounds are only available to the wife and they are: a. if the husband is guilty of rape, sodomy or bestiality; b. if the husband is guilty of bigamy; c. the option of puberty.
Now that we are clear with the basics of judicial separation, we move forward to the procedure for obtaining a decree of judicial separation in India.
1. Find yourself the best divorce lawyer
This goes without saying but you need the best family lawyer in Chandigarh to avail the most suitable remedy available to you. A lawyer will not only guide you through the whole process but also represent your best interest before the court.
2. Determine the place of filing the legal separation case
Under the Hindu Marriage Act, 1955, the place of filing a suit can only one from the following:
i. Where your marriage was solemnised
ii. Where you and your spouse last resided together;
iii. Where your wife is presently residing;
In the case of presumption of death, where you are presently residing.
The place of filing the case becomes crucial because if you file the case anywhere other than the above-mentioned four places, the court will not entertain your case and you will end up wasting your time and money. Also, if you choose the best family/divorce lawyer in Chandigarh then you will not bear the brunt of filing the case in the wrong place of jurisdiction.
3. Do not hide anything from your lawyer
Let’s be honest here, you should not hide anything from your lawyer. There might be an inner voice you have that will tell you otherwise, but do not pay heed to it because hiding things from your lawyer will do you no good as whatever you say stays between you and your lawyer under the attorney-client privilege and cannot be used against you, even after you switch lawyer(s), in the court.
4. Provide all the documents to your lawyer
It is important that you provide your lawyer with all the relevant documents concerning your case. Courts do not pass decrees solely on words, therefore, the requirement of a strong evidentiary base to your claims become indispensable.
5. Trust your lawyer
Yes, this is crucial. We all are aware that there exists a lot of portals where legal knowledge is available, but how correct is it? Like you cannot cure cancer just by going through ‘WebMD’, the same way, you cannot win a court case by going against your lawyer’s suggestion(s) just because you read something on the internet. Trust your lawyer to serve your best interest.
6. Get the separation decree:
Once, you have a decree of judicial separation in your favour, you can get a copy of the same from the court by paying the requisite fee. After the decree is passed, you can live separately from your spouse and cannot be forced to cohabit.
How is judicial separation different from divorce?
Even though the grounds available for judicial separation and divorce are the same, these both terms are different. When you get a judicial separation, you are allowed to live separately from your spouse, but since the marriage still exists, you both are still husband and wife. However, when you get a divorce, you and your spouse are no longer married and hence are no longer husband and wife.
That’s all, folks! We have covered the technicalities involved in a judicial separation, so if you’re thinking of getting a legal separation, then contact the experienced divorce/family lawyers in Chandigarh, Panchkula and Mohali to avail the best services. If you have more queries, contact us.