Judicial Separation

A separation does not mean the same thing as a divorce. Separation means that you and your spouse are living separately; however, you’re still legally married in the eyes of law until you get a judgment/decree of divorce from the court of competent jurisdiction. After being conversant with the benefits of legal separation, the figures for judicial separation cases in India is noticing an increase in comparison to divorce cases in India.

Black’s Law Dictionary defined ‘judicial separation’ as “separation of man and wife by decree of a court, less complete than an absolute divorce. A “limited divorce” or a “divorce a mensa et thoro.”(‘Mensa et thoro’ is a Latin term which commonly translates to “from bed and board”, and is a kind of divorce, which is rather a separation of the parties by law, than a dissolution of the marriage.”)

Judicial separation is an order passed by the court of competent jurisdiction which allows disgruntled couples to live separately for a certain period of time. Judicial separation is a last resort before the divorce. Section 10 of the Hindu Marriage Act, 1955 outlines the grounds for judicial separation as per Section 13(1) and (2) of the Act, which is:

i. Cruelty: the intentional and malicious infliction of physical or mental suffering upon spouse; or the wanton, malicious, and unnecessary infliction of pain upon the body, or the feelings and emotions; abusive treatment; inhumanity; outrage.
ii. Desertion: an act by which a spouse abandons and forsakes, without justification, or wilful failure without just cause to provide for the care, protection or support of a spouse.
iii. Adultery: the act of voluntary sexual intercourse of a married person with a person other than his/her spouse.
iv. Forced conversion of religion.
v. Unsoundness of mind; a term referring to someone who from infirmity of mind is incapable of managing himself or his affairs. It exists where there is an essential deprivation of the reasoning faculties, or where a person is incapable of understanding and acting with discretion in the ordinary affairs of life.
vi. Venereal or sexual disease(s): diseases identified with sexual intercourse.
vii. Renunciation of the world by either of the spouse on religious or spiritual grounds.
viii. Presumption of death: Either spouse has been missing for a period of seven years or more.

Additional grounds for Judicial Separation claimable by the wife

i. Husband is guilty of rape, Bestiality and/or Sodomy;
ii. Bigamy;
iii. An option of puberty (repudiation of marriage).
Where a decree for judicial separation has been passed by a court, it is no longer obligatory for the parties to cohabit with each other, but the court may, on a petition by either party and on being satisfied with the truth of the statements made in such a petition, rescind the decree if it considers it just and reasonable to do so.

Difference between Judicial Separation and Divorce

Although the procedure for judicial separation and divorce are similar, yet there are certain differences between them which are as follows:

  • Among advantages of judicial separation, non-termination of marriage is the prime one. Judicial separation does not terminate the marriage between the parties, whereas, in divorce, the marriage between the parties comes to an end. Consequently, it leaves the parties with an option to restitute the healthy relationship if they are willing to. Besides that if there is no chances of reconciliation, it becomes easier to get a divorce after judicial separation in India by acting as a separate ground.
  • While considering a petition for judicial separation, the court does not have to be satisfied with the fact that the marriage is irretrievably broken down, whereas in divorce it is one of the major factors while deciding the petition.
  • The parties can file for judicial separation any time post marriage; however, in the case of divorce, the parties can file for divorce only after the completion of one year of marriage.

Judicial separation, therefore, can be understood as a process, wherein, the couples are given a considerable amount of time to introspect before terminating their marriage by way of a divorce.