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Judicial Separation

INTRODUCTION

Judicial Separation is an alternative to divorce, through which both the parties to marriage are given time to resolve their issues and make efforts to save their failed marriage by living separately. Judicial separation doesn’t take away the status of legally wedded husband and wife. This provision has been adopted by the Indian legislature because marriage is considered as a ‘sacrament’ under Hindu Law and it is the duty of the Court to prevent breakdown of such a union.

HINDU LAW:

Any person who is a Hindu by religion (including a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj) or who is a Buddhist, Jaina or Sikh can apply for Judicial Separation under The Hindu Marriage Act, 1955. Once the judicial separation has been granted, it shall not be obligatory for the parties to cohabit together.

Grounds for Judicial Separation

Either husband or wife may present a petition for judicial separation on any of the following grounds:

  1. Adultery i.e. voluntary sexual intercourse with any person other than his or her spouse
  2. Cruelty including both mental and physical cruelty
  3. Desertion for a continuous period of not less than two years without reasonable cause and consent
  4. Conversion from Hinduism to any other religion
  5. Unsoundness of mind
  6. Suffering continuously or intermittently from mental disorder
  7. Suffering from a virulent and incurable form of leprosy
  8. Suffering from venereal disease in a communicable form
  9. Renunciation of the world by entering any religious order
  10. Not heard of being alive for a period of seven years or more by those persons

A wife may also present a petition for the judicial separation on the following grounds too

  1. Bigamy
  2. Guilty of rape, sodomy or bestiality
  3. Cohabitation between the parties has not been resumed for one year or upwards after order from the Court
  4. Marriage took place before attainment of the age of fifteen years

Where to file the petition

Petition has to be filed in the District Court of the place where:

  1. the marriage was solemnized
  2. the respondent resides
  3. the parties to the marriage last resided together
  4. the petitioner resides under certain circumstances

ISLAM

A Muslim woman has a right to live separately on the following grounds:

  1. Impotency
  2. Cruelty
  3. Irregular Marriage
  4. Failure to perform obligations mentioned in marriage contract
  5. Husband has been outcasted
  6. Arrangement of marriage by a guardian other than the father

CHRISTIANITY

The Christian couples can obtain Judicial Separation by filing petition under The Indian Divorce Act, 1869.

Grounds for Judicial Separation:

The husband or wife may obtain a decree of judicial separation, on the grounds of:

  1. Adultery
  2. Cruelty
  3. Desertion without reasonable excuse for two years or upwards

Where to file the petition:

On the basis of the above mentioned grounds, the aggrieved party can file the petition for Judicial Separation before the District Court within whose jurisdiction the marriage was solemnized, or where the respondent resides, or where the parties last resided together. The petition shall state, as distinctly as the nature of the case permits, the facts on which the claim is founded.

DIFFERENCE BETWEEN JUDICIAL SEPARATION AND DIVORCE:

Though the grounds and procedure for judicial separation and divorce are same, there are certain differences between the two. While divorce ends all the obligations and responsibilities associated with the marital relationship, judicial separation doesn’t take away the legal status of wedded husband and wife. Judicial separation doesn’t put an end to marriage, both the partners are still required to fulfill all the marital obligations except for the fact that they’re allowed to reside separately. After one year, if there is no resumption of cohabitation, then the couple may be granted divorce by the Court.

Why Divorce may be considered a better option?

  1. Divorce terminates the marriage and puts an end to all the obligations associated with it.
  2. Persons who are separated cannot get remarried until they formally divorce.

Why Judicial Separation may be considered beneficial?

  1. It doesn’t put an end to the marriage and there is still room for reconciliation.
  2. It gives both parties time and space to rethink about their marriage and make efforts to save their failed marriage without being compulsorily obliged to reside together.
  3. It prevents erratic and hasty decisions of ending marriages.
  4. If they fail to overcome differences, they can apply for divorce after one year.
  5. During judicial separation, husband cannot force sexual relationship with the wife without her consent, it will amount to rape.


- As on 1st July 2019