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Judicial separation

Judicial separation

August 20, 2022

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This article is written by Pragya Agrahari of Amity Law School, Lucknow. This article provides a detailed analysis of the matrimonial relief of judicial separation as provided under various personal laws. It also covers the difference between divorce and judicial separation.

It has been published by Rachit Garg.

Table of Contents

Introduction

According to the famous anthropologist Robert Lowie, “Marriage is a relatively permanent bond between permissible mates.” Marriage is a universal institution created to regulate the lives of human beings. It may have different implications in different cultures, but it is everywhere in society. In the Hindu social heritage, marriage is considered a sacrament. It is considered a religious duty of a person, and the marital bond is said to be inseparable and irrevocable. But with the advent of time, this concept has changed, and now it is no longer treated as inseparable. Under Indian matrimonial laws, marital relations can be put to an end by an agreement of judicial separation or through a divorce.

Judicial separation is a tool provided to married couples who are not willing to end their marriage entirely but only want to suspend some rights and obligations in marriage, whereas divorce ends the marriage entirely. An agreement of judicial separation provides an alternative to divorce.

This article will examine the concept of judicial separation and the grounds under which the decree of judicial separation can be pleaded. It also analyses its similarities and differences with divorce.

What is judicial separation

A judicial separation is a legal decree passed by a court to order a husband and wife to live separately or to end their conjugal relations without actually dissolving their marriage. It is sometimes called “divorce mensa et thoro”, that is, separation from ‘bed and board’. After the order of judicial separation, the husband and wife are not obliged to live together or cohabit, and all the basic marital obligations between them are suspended. They are merely separated from each other, consensually, so that they can get time to introspect their matrimonial relations. The agreement of judicial separation ordinarily results in either divorce or reconciliation between husband and wife. Hence, this period of separation acts as a time to review their marriage, and if they are not happy with their marriage, they can put it to an end with an agreement of divorce.

As the parties to a separation agreement remain husband and wife, they are not free to remarry. And if they remarry, they can be held liable for the offence of bigamy. If one of the spouses dies during the subsistence of the separation agreement, the other spouse will inherit his/her property. Another condition for a valid judicial separation was that a marriage should also be valid between the parties. The agreement of separation can’t take place in void marriages, but the case may be different if the marriage is voidable.

The various provisions for judicial separation were provided in the following Acts:

The Hindu Marriage Act,1955: for Hindus including people from Buddhism, Sikhism, and Jainism,
The Divorce Act 1869: for Christians,
The Parsi Marriage and Divorce Act 1936: for Parsi people,
The Special Marriage Act, 1954: applies to all people.

Judicial separation under different personal laws

Hindu Law

In the Hindu religion, marriage is considered a holy sacrament that is unbreakable and eternal in nature. It is considered not only for this life but also for many future lives. According to the ancient lawgiver, Manu, marriage cannot be dissolved. But due to the emergence of new problems in the modern life of an individual, various changes took place in Hindu law. Now, marriages are no longer considered indissoluble in nature. Various relief measures are provided to the parties in a marriage, in case of any disputes or other reasons, to dissolve the marriage through divorce or plead for judicial separation.

Section 10 of the Hindu Marriage Act, 1955 provides for the matrimonial relief of ‘judicial separation’ and the same position was also provided under Section 23 of the Special Marriage Act, 1954. The grounds under which the decree of judicial separation can be demanded by either husband or wife are the same as provided for agreement of divorce in both the legislations.

The various grounds for judicial separation were provided under Section 13 sub-section (1) and (2) of the Hindu Marriage Act, 1955, and under Section 27 sub-section (1) and (2) of the Special Marriage Act, 1954. Under the grounds specified in sub-section (1), either party can present a petition for judicial separation; and under the grounds specified in sub-section (2), only the wife can present the petition for judicial separation. Some of these grounds are as follows:

Adultery,
Cruelty,
Desertion,
Conversion,
Unsoundness of mind or mental disorder,
Venereal disease,
Renunciation,
Not heard for 7 years,
Bigamy,
Husband guilty of rape, sodomy or bestiality.

Parsi Law

In the Parsi religion, marriage is considered a contract and is solemnised through a ceremony called ‘Ashirvad’, in which the priest gives blessings to the married couples in the presence of two Parsi witnesses.

Under the Parsi Marriage and Divorce Act 1936, the provisions for nullity of the marriage, divorce, and judicial separation were provided as a relief measure for married couples. Section 34 provides for ‘suits for judicial separation’ which can be filed by any Parsi husband or wife on the various grounds mentioned in the Act for divorce under Section 32. These grounds are similar to those mentioned under the Special Marriage Act, 1954, and the Hindu Marriage Act, 1955.

Christian Law

Christian marriages are solemnized according to the Christian rites, ceremonies, and customs in the presence of the Minister of Religion, the clergyman of the church, or any other religious person. These marriages also take place in contract form.

The various provisions related to marriage and other personal laws of the Christian community were provided under the Indian Christian Marriage Act, 1872, but the provisions regarding divorce and dissolution of marriage were provided under the Divorce Act, 1869. Section 22 and Section 23 of the Divorce Act, 1869 allow the Christian husband or wife to obtain a decree of judicial separation on the grounds of adultery, cruelty or desertion for more than 2 years. This decree will be the same as a divorce a mensa et toro, that is, a divorce that separates the husband and wife and forbids them to live together but does not actually dissolve the marriage.

This decree can be reversed under Section 26 of the Divorce Act upon the petition of the spouse of the party on whose petition the decree of judicial separation was granted. It can be prayed on the ground of his/her absence during the petition for judicial separation, and if the court finds it satisfactory, it can pass a decree for its reversal.

Muslim Law

There is no concept of relief from judicial separation in Muslim law. In the case of Rahmat Ullah and Khatoon Nisa v. the State of U.P. (1994), it was observed that “Muslim Personal Law or Shariat Law, although recognise the concept of talaq, that is, divorce, but doesn’t know or does not conceive of any such thing as ‘judicial separation as provided under the Hindu Marriage Act and the Special Marriage Act”. Though there is no law which specifically provides for the relief of judicial separation to the spouses, there are some landmark cases which extend the grounds provided under Section 2 of the Dissolution of Muslim Marriages Act, 1939, for the dissolution of marriage on the grounds of judicial separation. Some of the grounds as provided under the Act are:

No whereabouts known of husband for 4 years,
Neglect or failure to provide maintenance for 2 years,
Husband sentenced to imprisonment for 7 years or more,
Failure to perform marital obligations for 3 years,
Impotency,
Insane or suffering from leprosy or venereal disease,
Repudiation of marriage by wife before 18 years when marriage solemnised before 15 years,
Cruelty.

In the case of Ms. Jordan Diengdeh v. S.S. Chopra (1985), the honourable judges enumerated various grounds under which a Muslim wife can also obtain a decree for the dissolution of marriage. This case also stressed the need for uniform laws with regard to the nullity of marriage, divorce, and judicial separation, which will apply to all people irrespective of their religion.

Grounds of judicial separation in India

Adultery

It refers to voluntary sexual intercourse between one of the spouses in a marriage with another person out of wedlock. In the case of Dr. H.T. Vira Reddi v. Kistamma (1968), the Court provided an award of judicial separation to the appellant (husband) on the ground that the respondent (wife) had committed sexual intercourse with a third person. The Court held that “the relief of legal separation will be provided even if a single act of infidelity on the part of the other spouse is proved.”

Cruelty

The meaning of cruelty is not the same as the word cruelty understood in the layman’s language. ‘Legal cruelty’ has a different connotation. The Supreme Court, in the case of G.V.N. Kaeswara Rao v. G. Jalli (2002), tries to define the term ‘cruelty’ in reference to marriage. The Supreme Court held that the act would be cruel if it was intended to cause suffering to the other party. It may not create apprehension in the mind of the spouse that it is harmful to live with the other spouse. The intention of the party causing the cruelty is immaterial. Moreover, it need not be against the petitioner nor need to be done only by the respondent.

Desertion

Desertion for a continuous period of two years can be the ground for the appeal of judicial separation. It means a total repudiation of marital obligations by one party without any reasonable cause and the consent of the other party. It can be of three types-

Actual desertion

When any of the spouses actually abandons the other party through any of his/her acts. For example, in the case of Meena v. Lachman (1959), the wife left for her parent’s home without informing her husband and made false promises of return but did not come back for a period of 2 years. The Bombay High Court held desertion and ordered judicial separation.

Constructive desertion

When any of the spouses creates such an environment which forces another party to leave, it is called ‘constructive desertion’ by the party who is forced to do so. For example, in the case of Jyotish Chandra Guha v. Meera Guha (1969), the husband was not interested in his wife and his behaviour towards her was cold and rude from the beginning of the marriage, due to which the wife suffered a lot of agonies, mental and physical, and was forced to file a divorce petition. It was held to be desertion at the hands of the husband.

Wilful neglect

When any of the spouses intentionally neglects the other party without physically deserting, it is wilful neglect. It includes the refusal to cohabit or the neglect of various other marital duties.

Conversion

When any one of the spouses has converted to another religion and ceased to be a Hindu, the other party can appeal for judicial separation. In the case of Vilayat Raj v. Smt. Sunila (1983), where the husband converted to Islam and moved a petition for dissolution of marriage. The question was whether an apostate of Hinduism could file a petition for dissolution of marriage under the Hindu Marriage Act, 1955. The Court held that he can file a petition as the conversion of religion per se does not end the marriage but only acts as a ground for ending the marriage. However, the Court also observed, “party is not entitled to take advantage of his own wrong or disability and gain from a situation which he has brought about, resulting in detriment to the other spouse.”

Unsound mind or mental disorder

If any one of the spouses is of unsound mind or suffering from any mental illness or disorder that is incurable in nature and it is difficult for another party to live with the spouse with such a condition, one can file an appeal for judicial separation. In the case of Anima Roy v. Proboth Mohan Roy (1968), where the husband demanded the nullity of the marriage on the ground of the unsoundness of mind of his wife, it was contended that she was suffering from schizophrenia on the date of the marriage. The Court did not allow his petition as there was an unnecessary delay of three years from the date when it was alleged that he came to know about his wife’s problem, in the filing of the petition, and the evidence shown was also not satisfactory.

Venereal communicable diseases

If any one of the spouses is suffering from any venereal diseases which are communicable and incurable, like HIV/AIDS, HPV, syphilis, etc., the other party can pray for the agreement of judicial separation. In the case of Madhusudan v. Smt. Chandrika (1975), the husband appeals against the dismissal of his petition by the District Judge for annulment of marriage or judicial separation on grounds of his wife’s suffering from venereal disease, syphilis. The Court set aside the appeal as he was unable to prove that his wife was suffering from syphilis for a period of three years before the date of the petition. It was also not proved that the disease was incurable.

Renunciation

Renunciation means that the person has abandoned the whole world and all the material pleasures to lead a spiritual life and attain enlightenment. It is one of the grounds on which a party to a marriage can pray for judicial separation. In the case of Teesta Chattoraj vs. Union of India (2012), the expression ‘renounce the world’ was defined as to withdraw from worldly interests in order to lead a spiritual life. It means formally consenting to abandon, surrender, or give up a claim, right, possession, etc.

Presumption of not being alive

When any of the spouses goes missing for a minimum of 7 years and there is no information about his/her aliveness, nor is his/her family or friends aware of his/her presence, then it is presumed that the spouse has died and the other spouse can pray for judicial separation on this ground.

Grounds of judicial separation available to the wife

Bigamy

It refers to marrying the other person when one is already legally married to one person. Before the commencement of the Act, if the husband remarries the other woman, even when his wife is alive, the wife could file a petition for a grant of judicial separation from her husband. In the case of Harmohan Senapati v. Smt. Kamala Kumari (1978), the plaintiff (wife) has filed a suit for judicial separation as the defendant (husband) has married the other woman and lived with her without dissolution of their earlier marriage.

Guilty of rape, sodomy or bestiality

If the husband, after the marriage, becomes guilty of rape, sodomy, or bestiality, then the wife is entitled to file a petition for judicial separation on this ground. For example, if ‘A’ and ‘B’ are husband and wife and the husband ‘A’ is found guilty of rape of another woman, the wife ‘B’ can file a petition for judicial separation.

Non-resumption of cohabitation after an order of maintenance

If any decree or order was passed against the husband for providing maintenance to the wife under various acts like the Hindu Adoptions and Maintenance Act, 1956 or under Section 125 of the Code of Criminal Procedure, 1973, and no cohabitation between the husband and wife was resumed for a period of 1 year or more, the wife can file a petition for judicial separation.

Repudiation of marriage after the age of 15 and before the age of 18

If the marriage was solemnised when the girl has not attained 15 years of age and she has repudiated the marriage after attaining the age of 15, but not before attaining 18 years of age, the wife can file a petition for judicial separation. This ground plays a great role in providing relief to minor girls, especially from backward communities, who were married against their wishes.

Consequences of judicial separation

After an agreement of judicial separation, the husband and wife are no longer obligated to live together. Although their legal status as husband and wife remains unchanged, cohabitation between them remains suspended. Section 376B of the Indi a n Penal Code, 1860 provides legal relief to a separated wife by stating that if, after the decree of judicial separation, the husband had sexual intercourse with her without her consent, he would be held liable for punishment. The punishment for such an offence will be for a minimum term of 2 years, which may extend to 7 years. Moreover, the spouses were restrained from remarriage during the period of judicial separation. In the case of Narasimha Reddy v. Basamma (1975), it was held that if any spouse carried out a marriage during this period of separation before divorce, it would amount to bigamy. The spouses after the judicial separation were entitled to the same property rights as before, as upheld in the case of Krishna Bhattacharjee v. Sarathi Choudhary (2015), where the Supreme Court allowed the right of ‘stridhan’ to the wife after an agreement of separation. The Court held it as the exclusive property of the wife.

Sometimes, the court grants a decree of judicial separation for a period of one year so that spouses can take decisions either for conciliation or divorce. This period provides them time to introspect their marriage and provides an opportunity for reconciliation.

Is judicial separation the same as divorce

Judicial separation and divorce are both matrimonial reliefs provided by various legislation to the aggrieved party in a marriage. Both are ways to dissolve marital obligations and rights towards each other in a marriage. But unlike divorce, judicial separation is a ‘lesser evil’ as it does not end the whole marital bond itself. It only separates the husband and wife and restricts them from living together, but the marital bond between them as husband and wife remains the same. One can reverse the decree of judicial separation by living together or by resuming their conjugal obligations and rights toward each other.

In the case of Amit Singh v. Sandhya Singh (2019), the Allahabad High Court has enumerated various points of difference between the matrimonial relief of divorce and judicial separation.

Some of them are as follows:

Grounds	Divorce	Judicial Separation
Termination of marriage	After the agreement of divorce, the marriage bond between the spouses is terminated.	After the agreement of judicial separation, the marriage bond between the spouses is not terminated.
Mutual rights and obligations	The mutual rights and obligations against each other end with the divorce.	The mutual rights and obligations against each other remain suspended only in the case of judicial separation.
Chance of reconciliation	There is no chance for reconciliation as the marriage no longer exists.	There is a chance for reconciliation if the spouses agree to live with each other again and resolve their differences.
Right to remarry	The parties are allowed to remarry as they are no longer bound by any marital bond.	The parties are not allowed to remarry as their marital bond was merely suspended, not ended.
Status of being husband and wife	The parties are no longer called husband and wife.	Both parties remain husband and wife to each other.
Time for filing the petition	The petition for divorce can only be filed after one year of the marriage.	The petition for judicial separation can be filed at any time after the marriage.
Process	It is a two-step process. First, for reconciliation and then for divorce.	It is a one-step process.
Rights and liabilities	The divorced partner loses all his/her rights to the partner’s assets.	The partner in a judicial separation has the same rights as married ones in the assets of the partnership.

Why judicial separation is better than divorce

It was held in various cases that judicial separation is a ‘lesser evil’ than divorce, as the chances of conciliation in marriage are higher in the case of judicial separation. Unlike divorce, there is no permanent breakage of marital bonds in judicial separation. Therefore, it provides the time for both the parties in the marriage to introspect their relations and decide their future conditions, whether they want a divorce or a reconciliation. Sometimes, disputes in marriages arise due to some trivial matters and divorce appears to be a huge step for such disputes. In such cases, judicial separation provides an alternative means of relief to the victim.

According to English law, there are two types of divorce:

Absolute divorce (vinculo matrimonii), and
Limited divorce (a mensa et thoro).

A judicial separation is a form of limited divorce in which only the obligation of cohabitation is suspended while the marital bond still subsists. It acts as a final step before a permanent divorce to resolve their marital disputes. Moreover, this also provides some time for the parties to review their decision and take advice from their friends and family about the same.

In the case of Mozelle Robin Solomon v. Lt. Col. R.J. Solomon (1968), the Bombay High Court held, “The difference between the two is that a decree for divorce has the effect of dissolving the marriage and putting an end to the marital bond, thus making the absolute separation between the parties both in fact and in law. A decree for judicial separation is, however, not one of final irrevocability but is one for legal separation and does not of itself result in the dissolution of the marriage tie.”

Can judicial separation be granted in place of divorce

In the case of Vinay Khurana v. Shweta Khurana (2022), the Delhi High Court observed that matrimonial reliefs of judicial separation and divorce are completely different, although they are both granted on similar grounds. While judicial separation does not intend to end the marital bond between husband and wife, the divorce liberates them from their marital bond, giving them the right to remarry. Hence, the court held the earlier decision of the Family Court as faulty, which granted a decree of judicial separation in place of a divorce.

This case also talks about the powers of the Family Court to alter the relief sought by the parties. It was held that it is not for the Family Court to substitute one matrimonial relief sought by the parties, with the other. It cannot tell the parties what is ‘good and bad’ for them. It can only advise the parties, taking into account the various facts associated with the case.

How to apply for judicial separation

A petition for judicial separation can be filed by either party, husband or wife, on the grounds provided under the respective acts. According to the provisions under Section 19 of the Hindu Marriage Act, 1955, every petition related to judicial separation shall be presented to the district court within the jurisdiction:

Where marriage was solemnised,
Where the respondent resides at the time of the petition,
Where the spouses last resided, or
Where the petitioner resides at the time of the petition.

According to Section 20 of the Hindu Marriage Act, 1955, every petition should contain the facts and nature of the case on which the claim for judicial separation can be founded. It must also show that there is no collusion between the parties seeking judicial separation.

Section 21 of the Hindu Marriage Act, 1955 provides that all the proceedings related to this Act are regulated by the Code of Civil Procedure, 1908. In Order VII Rule 1 of the Civil Procedure Code, 1908, it was provided that every plaint for judicial separation shall contain the following information:-

Name, place and residence of the petitioner,
Name, place and residence of the respondent,
Facts of the case,
Jurisdiction of the court,
Grounds for judicial separation,
Relief that the petitioner seeks,
Date and place of marriage.

After such a petition, the court sends notice of the petition to the respondent and hears both the parties’ arguments. The court will examine the truth of the grounds under which the claim for judicial separation was made and pass a decree of judicial separation if satisfied with its credibility. The trial of a petition for judicial separation should conclude as expeditiously as possible or within six months from the date of such petition.

Once the parties are judicially separated, they can also apply for a divorce if the circumstances of the case demand it. Under Section 13B of the Hindu Marriage Act, the parties can obtain a ‘divorce on mutual consent’ on the ground that they are living separately for a period of one year or more. After the first motion and the presentation of the divorce petition, they will get a period of six months, known as ‘cooling period’ which was granted as a last chance to reflect on their decision. But this cooling period was not necessary, especially when the parties were already judicially separated. It has a similar process as a petition for judicial separation except that the petition for divorce cannot be presented before one year of the solemnization of marriage.

Limitations of judicial separation

Complex as divorce: Although it acts as an alternative to divorce, judicial separation is not a less complex process than divorce. The grounds for both of these matrimonial reliefs are the same and the procedures for filing petitions for both of them are the same.
Unnecessary marital bond: Judicial separation seeks to save that marital bond, which has already been broken on severe grounds like cruelty, desertion, adultery, etc. just to show society that keeping the marital bond alive is unnecessary.
Same psychological effect: The agreement of judicial separation projects the same stress and psychological tension in the minds of the spouses seeking separation as in the case of divorce.

Status of judicial separation globally

England

The provisions for judicial separation in England are provided in Section 17 and Section 18 of the Matrimonial Causes Act, 1973. Either or both parties can file a petition to obtain judicial separation.

According to the Royal Commission on Divorce and Matrimonial Causes, appointed in 1909 and presided over by Lord Gorell, judicial separation forces celibacy while remaining in the ties of marriage. It was criticised many times due to its inadequacy to resolve the situation and its detrimental effects on the parties and their children. However, the Commission upheld the requirement of judicial separation for those for whom the divorce was repugnant on religious and conscientious grounds. Another Royal Commission on Marriage and Divorce in 1956 called for the retention of this matrimonial relief on similar grounds.

The USA

In the United States of America, it is known as ‘legal separation’ while it has the same meaning as judicial separation. Laws related to legal separation are different in different states of the U.S. In fact, some states do not even recognise the concept of legal separation. The states that recognise this concept consider it essential for religious purposes or for enjoying various other maintenance benefits.

Australia

In Australia, provision for separation is contained in Section 49 of the Family Law Act 1975, and it means no more living together as a couple. The federal family laws of Australia define separation as “an act of ending the marriage or de-facto relationship” and it involves the ending of cohabitation between the parties. The couples can also be separated under one roof by fulfilling certain criteria. This is called ‘separation under one roof.’ Neither any legal process to obtain separation is required nor any registration of separation needs to be done. But the couples need to inform the relevant authorities about the same. They also have to take note of the date of separation as it is a pre-requisite to obtaining a divorce in Australia. A couple can obtain a divorce only after a separation of one year or more.

Canada

In Canada, the provision for divorce and separation is contained in Section 8 of the Divorce Act, 1985. When the couples end their marriage and start living separately, then they are called ‘separate’. There is no concept of judicial separation as such, but there is a concept of ‘separation agreement’, which is a contract made between the parties divorcing or separating. Also, the separation for one year forms the ground for obtaining a divorce. Separation agreement is a contract between the couples which deals with various issues between the parties like living arrangements, division of property, maintenance, custody of children, etc.

Conclusion

Marriage in our society, especially in India, is considered a sacrosanct union and the breakage of this sacred union is seen as an inauspicious event. This belief, from time immemorial, has mandated many couples to live in forced marriages, which are full of unhappiness. People hesitate to seek the relief of divorce as it is a very huge step for them, enough to tarnish their reputation, especially in the case of women. Hence, they can go for various other alternatives.

Judicial separation provides an alternative to divorce, which can be filed any time after the marriage. If the parties to the marriage are not happy with their marriage, they can pray for judicial separation and meditate on their relationship. There are many advantages of judicial separation over the agreement of divorce, as aptly stated by the courts, that it is a lesser evil than divorce. It provides time for the parties to rethink their decision and reconcile with each other. This tool has been proven in restoring peace among broken families and in maintaining the piousness of the institution of marriage.

Frequently asked questions

What happens after the decree of judicial separation?

After the decree of judicial separation, the wife and husband are free from the obligation of living together. During the period of separation, they get a chance to mend their relations and seek annulment of the decree of separation. They can also seek a divorce and dissolve their marital relationship if they are unable to restore peace between them.

Which is better for matrimonial relief, divorce or judicial separation?

Judicial separation seems to be a better matrimonial relief and the best alternative to divorce. Before the breakage of the marital bond completely, it provides a space for reconciliation. Moreover, it also does not dissolve the marital tie permanently, it just suspends some obligations and rights between them.

Can a wife be entitled to maintenance from her husband after the decree of judicial separation?

Yes, the wife is entitled to maintenance from her husband even after the decree of judicial separation. If the court finds that the wife is unable to meet her own expenses, it can order maintenance for the wife. This position was held in the case of Rohini Kumari v. Narendra Singh (1971).

Can a Muslim woman seek the relief of judicial separation?

No, Muslim women cannot seek the relief of judicial separation as there are no provisions for judicial separation in their personal laws. Sharia law and other personal laws of Muslims do not recognise any such thing as judicial separation. They only recognise matrimonial relief of talaq (divorce).

References

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