Law on Judicial Separation in India

Law on Judicial Separation in India

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Law on judicial separation
Law on judicial separation

Introduction

Hinduism is not just a religion, but a way of living. Out of 16 Samskaras of Hinduism, marriage is one sacred practice. It is an unbreakable bond between 2 people. Marriage in Hinduism is said to last for 7 births and is indissoluble.

Under ancient Hindu law, there was no concept of divorce. But after the codification of Hindu law, the concept of divorce was introduced. Yet, there is one alternative way.

Divorce has some specific grounds and a time period. Though, for temporary or less complex solutions, judicial separation was introduced. Let us discuss in-depth judicial separation.

Judicial separation

Judicial separation means the legal breakdown of the marriage. It is a stage after marriage but before the divorce. The couple is formally separated and does not need to live together. However, marriage still subsists. There is room for settlement between parties.

Legal provision

Hindu Marriage Act, 1956 has been drafted meticulously. It has written down provisions systematically. First, marriage and its essentials. Second, if the husband/wife leaves the matrimonial house, then restitution of conjugal rights. Thirdly, if nothing works out, breakdown of the marriage.

Although, divorce is not the only choice. Because parties cannot file for divorce within 1 yr. of marriage. Before it, parties can opt for judicial separation. Parties will be legally married but physical access is not necessary.

Section 10, Hindu Marriage Act

It mentions that either husband or wife can approach the court. Grounds for judicial separation are the same as those for divorce.

Grounds

  • Adultery
  • Cruelty
  • Desertion- continuous period of 2 yrs.
  • Conversion to other religion
  • Unsound mind, mental disorder
  • Venereal disease
  • Renounced the world
  • Not heard of being alive for 7 yrs.

Other grounds for women

  • Polygamy by husband
  • Husband guilty of rape, sodomy, or bestiality
  • The woman married before 15 yrs of age and repudiated the marriage after attaining 18 yrs.
  • Divorce by mutual consent

Application/Petition

Either husband or wife can apply for a judicial separation decree to Family Court. Subsequently, the court will look into the application. If it finds valid grounds, a judicial separation decree can be granted, otherwise not. Once the decree is passed, couples are not bound to cohabit with each other.

Information of parties

Petition for judicial separation must contain:

  • Name of parties (husband and wife)
  • Their age and address
  • Their father’s name
  • Date of their marriage
  • Ground for judicial separation
  • Incidents that corroborate the ground
  • Prayer to grant judicial separation

Effect of Judicial separation

The immediate impact of the judicial separation decree is that cohabitation ceases. However, there is no change in the marital status of the parties. They still remain husband and wife, but not under one roof.

Declaring the decree null and void

Nevertheless, if they feel that the dispute is resolved, the decree can be rescinded. The decree of judicial separation can be rescinded by the court. For this, either of the parties can apply. Further, the court will look into the truth of the statements. If it is just and reasonable, the court will rescind the judicial separation decree.

Couple with children

Let’s assume that couples want to separate and have child/children. Seeking divorce directly can have a negative impact on offspring. Also, custody of child/children becomes another issue. Therefore, judicial separation is a midway to the problem.

Maintenance to wife

It is expected that the husband will take care of his wife. He will look after her expenses and give her a decent living. But, is a husband bound to maintain his wife after judicial separation? The answer is yes.

Section 25, Hindu Marriage Act

Either husband or wife can apply to the court for maintenance. The court while passing any decree can order the defendant to pay maintenance to the petitioner. Provision of maintenance not only applies to divorce but also to judicial separation. Husband is liable to maintain wife (and child/children, if any) and vice-a-versa.

Case

Bhagyashri vs Jagdish

  • The court said that the scope of Section 25 cannot be restricted to a divorce decree
  • A decree can also be under Section 9, 10, 13, or 13B

DIFFERENCE BETWEEN JUDICIAL SEPARATION AND DIVORCE

Where explained

  • Judicial Separation – Section 10, HMA
  • Divorce- Section 13, HMA

When to file

  • Judicial Separation- any time after marriage
  • Divorce- only after 1 year of marriage

Process

  • Judicial Separation- one stage- grant of decree depends on the satisfaction of the court
  • Divorce- two stages- parties are suggested to reconcile and then take divorce

Nature

  • Judicial Separation- temporary in nature- marriage still subsists
  • Divorce- terminates marriage- marital status changes to divorcee

Prohibition on marriage

  • Judicial Separation- both parties cannot marry
  • Divorce- both parties are free to marry

Right to inheritance

  • Judicial Separation- remains enforced
  • Divorce- ends with the passing of a divorce decree

Reconciliation

  • Judicial Separation- full chance to reconcile and declare the decree void
  • Divorce- no chance to reconcile after the divorce decree is passed

CONCLUSION

Marriage is the most sacred practice under Hindu Law. The bond made by marriage is considered unbreakable for 7 births. That is why, to respect such a notion, the provision of judicial separation was codified. It saves marriage from permanent dissolution. Couples are given a chance to talk out their differences.

Relationships should not be ended in a hurry. Instead, the settlement should be sought to resolve not-so-big disputes.

If still doubts persist, consult legal experts at https://www.aapkaconsultant.com/legal-opinion-legal-shots

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