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Difference between judicial separation and divorce

June 26, 2023

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This article is written by Shubham Kumar and Gautam Badlani, a student at Chanakya National Law University, Patna. The article discusses the difference between judicial separation and divorce. Further, this article enumerates the grounds of divorce and judicial separation as provided under the various personal laws and also differentiates between the two concepts.

It has been published by Rachit Garg.

Table of Contents

Introduction

In Indian society, marriage is considered a sacrament. It is an irrevocable relationship between a husband and wife established through rituals and customs. Before 1955, there was no relief available to either party in case of a failed marriage. They had to continue with the marriage and couldn’t break it. However, after the passage of Hindu Marriage Act, 1955, things changed in favour of both parties to the marriage. Now, in the case of a failed marriage, the parties do not need to suffer in the marriage and can easily break their matrimonial alliance through judicial separation or a decree of divorce.

The Marriage Laws (Amendment) Bill, 1976, makes the ground for judicial separation and divorce common. It is up to the parties to choose between the two methods of dissolution.

The legal effects of judicial separation and divorce are, however, different. A divorce puts the final nail in the coffin of marriage, whereas, judicial separation leaves scope for settlement between the parties.

Now let us have a look at exactly what the key differences are between judicial separation and divorce.

What is judicial separation

Either party to the marriage, whether solemnised before or after the commencement of the Hindu Marriage Act, 1955, can, under Section 10 of the Act, file a petition for judicial separation. After a decree is passed in favour of the parties, they are not bound to cohabit with each other. Some matrimonial rights and obligations, however, continue to exist. They cannot remarry during the period of separation. They are at liberty to live separately from each other. Rights and obligations remain suspended during the period of separation. The grounds for judicial separation are the same as for divorce. Under Section 13(1), judicial separation may be sought on the following grounds:

Adultery: If another spouse had voluntary sexual intercourse with any person other than his or her spouse after solemnization of marriage.
Cruelty: If after solemnization of marriage, one of the spouses treats the other with cruelty.
Desertion: If the other party has deserted the spouse for a continuous period of 2 years without any reasonable ground immediately preceding the presentation of the petition.
Conversion: If one of the spouses has ceased to be a Hindu.
Insanity: If the other party is of unsound mind or has been suffering continuously from mental disorder of such a kind and to such an extent that the petitioner cannot live with the other party.
Leprosy: If the other party has been suffering from a virulent and incurable form of leprosy.
Venereal disease: If the other party has been suffering from venereal disease in a communicable form.
Renounced the world: If the other spouse has renounced the world by entering any religious order.
Has not been heard alive for seven years.

In addition to these grounds, some of them are exclusively reserved for women:

Husband has more than one wife living: If the husband had married before the commencement of the Act and after the commencement of the Act has remarried, either of the wives can present a suit for judicial separation provided the other wife is alive at the time of presentation of the petition.
Rape, sodomy or bestiality: If a man is guilty of offence like rape, sodomy or bestiality, the wife can present a petition for judicial separation.
Marriage before the age of fifteen years: If the marriage of women was solemnised before attaining 15 years of age, she has the right to repudiate it, provided she is below the age of 18 years.

Effect of judicial separation

Judicial separation is regarded as a temporary suspension of marriage where the parties are no longer entitled to the right of cohabitation. It can be considered a forward step towards divorce. However, there is always the possibility of reconciliation.

Judicial separation does not end the marital status of the parties. However, it is pertinent to note that where a decree for judicial separation has been passed and the wife is unable to maintain herself, the court may order the husband to provide maintenance to the wife.

However, the parties continue to remain legally married, and if either of the parties marries again, such a party will be guilty of the offence of bigamy. Similarly, if either of the parties dies while the decree of judicial separation is in effect, the surviving party is the legal heir to the deceased’s property.

Judicial separation under various laws

Judicial separation under the Special Marriage Act, 1954

Section 23 of the Special Marriage Act, 1954, provides that a husband or wife can file an application for a decree of judicial separation against the spouse under the following circumstances:

Where one of the spouses deserts the other for a continuous period of 2 years;
Where any spouse is convicted of an offence under the Indian Penal Code, 1860, and sentenced to 7 years of imprisonment or more;
Where the spouse suffers from leprosy;
Where the spouse treats the petitioner with cruelty;
Where the spouse is a person of unsound mind or where he/she suffers from continuous or intermittent mental disorder;
Where the spouse suffers from a communicable venereal disease;
Where the spouse has not been heard of for the past 7 years;
Where the husband has committed the offence of rape, bestiality, or sodomy after the solemnization of marriage;
Where the parties to the marriage fail to comply with a decree for restitution of conjugal rights. Section 23(1)(b) of the Special Marriage Act, 1954, specifically provides that failure to comply with a decree passed for the restitution of conjugal rights will be a ground for judicial separation.

Section 23(2) provides that once the decree for judicial separation is passed by a court of law, the petitioner will no longer be obliged to cohabit with the respondent. Moreover, the Section provides that the court may, upon an application by either of the parties, rescind the decree if it finds the statements of the petition to be truthful and if it finds it just and reasonable to rescind the decree.

Judicial separation under the Foreign Marriage Act, 1969

Marriages that are solemnised under the laws of foreign countries are recognised in India by virtue of Section 23 of the Foreign Marriage Act, 1969. This Section provides that if the Central Government is satisfied that the law in force in a foreign country by which marriages are solemnised is similar to the law in India on the solemnization of marriages, the Central Government may notify that the marriages solemnised under the foreign law will be recognised as valid in India.

So far as the marriages solemnised under foreign law are concerned, Section 18 of the Foreign Marriages Act, 1969, provides that the provisions of Chapters IV, V, VI, and VII of the Special Marriage Act, 1954, will apply to the marriages solemnised under foreign law.

Judicial separation under the Divorce Act, 1869

Section 22 of the Divorce Act, 1869, provides that either of the parties to a marriage can obtain a decree of judicial separation on the grounds of cruelty, adultery, or desertion for a period of 2 years or more. Such a decree will bar a decree for a divorce mensa et toro, but judicial separation is obtainable. A mensa et toro divorce forbids the parties from cohabiting but does not dissolve the marriage.

Section 23 of the Act provides that either of the parties to a marriage can file a petition for judicial separation before the district court. The court may, if it is satisfied that the statements made in the petition are true and there are no legal grounds to reject the application for judicial separation, grant the relief sought.

Judicial separation under the Parsi Marriage and Divorce Act, 1936

Section 34 of the Parsi Marriage and Divorce Act, 1936, provides that a married person can file a suit for judicial separation on any ground for which a divorce suit can be filed. Section 35 provides certain conditions upon which the court may refuse to grant a decree of judicial separation or divorce.

Maintenance during judicial separation

A wife who is unable to maintain herself can seek maintenance from the husband even if they are living separately under a decree for judicial separation. In the case of Sanju Devi v. State of Bihar (2017), the husband argued that since there was a decree of judicial separation in operation, the wife was not entitled to maintenance. The High Court had held that since the trial court had not recorded any finding to the effect that the wife was unable to maintain herself, she was therefore not entitled to maintenance.

The matter went to the Supreme Court on appeal, and the Apex Court held that whether the wife is entitled to maintenance or not must be determined by the High Court by looking into the merits of the matter. Moreover, a wife who is judicially separated is also entitled to maintenance, and her right to seek maintenance is not seized by the decree of judicial separation.

Some noteworthy points on judicial separation

Can maintenance be claimed by a wife during the period of judicial separation

In cases pertaining to judicial separation, the court can also deal with questions of maintenance of the wife, custody of children, and property. In Sohan Lal v. Kamlesh (1984), it was held that in cases of judicial separation, a wife is allowed to claim maintenance from her husband if she is not able to maintain herself.

What to do in cases where, after judicial separation, the parties want to resume cohabitation

Since a decree for judicial separation is a judgement in rem, if the parties want to resume cohabitation, it is necessary for them to get the order of judicial separation annulled by the court. Normally, the court rescinds the degree upon presentation of the petition with the consent of both parties.

What is the purpose of a judicial separation

Judicial separation is a step before divorce. The purpose of judicial separation is to provide an opportunity for the parties to reconcile their differences.

Advantages of judicial separation

The advantage of judicial separation is that it enables the parties to enjoy their lives separately from each other without any interference from the other spouse. The parties also have the opportunity to reconcile their marriage, as it is not dissolved. The parties are not allowed to remarry, and they remain legally married to each other.

What is a divorce

In cases of divorce, the parties cease to be husband and wife. Divorce puts an end to the marriage, and all mutual rights, and obligations are terminated. The parties are free to marry again.

Grounds for divorce

The grounds for divorce are mentioned under Section 13(1). The grounds of divorce and judicial separation are the same. Apart from these grounds, the wife may seek divorce on additional grounds like cruelty, leprosy, desertion, etc.
The parties are also free to present a petition in case there is no resumption of cohabitation between the parties to the marriage for a period of one year or more after the passing of judicial separation by the court. In such a case, the court will not require proof of any of the grounds for divorce. A mere presentation of the petition will be sufficient for the court to grant a decree of divorce.
If the court had ordered restitution of conjugal rights under Section 9 of the HMA, 1955, and the parties did not comply with the decree of the court and failed to cohabit, then on presentation of the petition for divorce, the court will not inquire into any grounds for divorce and will pass a decree of divorce on the grounds of failure of restitution of conjugal rights.
In a petition for divorce, if the petitioner cannot prove grounds for divorce, or the court is not satisfied that the act is so grave to pass a decree of divorce it has the power to pass a decree of judicial separation even if the petitioner did not ask for it. In the case of Vimlesh v. Prakash Chandra Sharma (1992), the Allahabad High Court held that a single instance of cruelty is not so grave as to pass a decree of divorce. Thus, the Court granted a decree of judicial separation to provide an opportunity for the parties to reconcile.

Additional grounds for divorce

The Marriage Law (Amendment) Act, 1976, provides an additional ground for divorce under Section 13(b). Where both parties feel that the marriage is torn and there is no scope for reconciliation, both parties may, by mutual consent, present a decree of divorce under Section 13(b), whereby the court will not inquire for any reason for divorce and will grant a decree in favour of the parties if both of them want a divorce. Under the Act, a period of six months for reconciliation is granted on presentation of a petition for divorce by mutual consent. However, in the case of Nikhil Kumar v. Rupali Kumar (2016), the Supreme Court has done away with the mandatory reconciliation period of six months. Now, divorce on the ground of mutual consent can be granted on presentation of the petition, and parties do not need to wait for six months.

Irretrievable breakdown of marriage

There have been several debates regarding the inclusion of irretrievable breakdown as a ground for divorce under the Hindu Marriage Act, 1955. The matter was referred to the Eighth Law Commission by the Government of India. It is pertinent to note that an irretrievable breakdown of marriage is not a ground for seeking a decree of judicial separation.

An irretrievable breakdown of marriage implies that the marriage has become bitter and that there is no possibility of it being restored or saved. This theory implies that if the court is of the opinion that there are no measures that can be taken to save the marriage and that even if restored, the marriage would amount to cruelty to the parties, then it can grant a decree of divorce.

The 71st Report of the Law Commission of India recommended that the irretrievable breakdown of marriage be incorporated as a separate ground for divorce. The Law Commission suggested that if the parties remained separate for three continuous years, then their marriage should be considered irretrievably broken.

The Marriage Laws (Amendment Bill), 2010, proposed to incorporate irretrievable breakdown as a ground for divorce under Section 13 by the insertion of Section 13(c). However, the Bill could not survive the mandate of Parliament. The Bill was opposed on the ground that mutual consent already exists as a ground for divorce, and if the marriage has broken down irretrievably, then the parties have the option to file for divorce by mutual consent. However, it is noteworthy that divorce by mutual consent requires the consent of both parties, and divorce on the grounds of irretrievable breakdown can be sought by either of the parties without the consent of the other party.

Dr. N.G. Dastane v. Mrs. S. Dastane (1975)

In this case, the appellant husband had filed a petition seeking a decree for annulment of marriage on the ground of fraud, or alternately, a divorce on the grounds of unsoundness of mind or judicial separation on the ground of cruelty.

Both the appellant and the respondent were well educated and belonged to reputed families. Prior to the marriage, the respondent’s father had written two letters to the appellant’s father stating that the respondent had been afflicted by some mental illness in the past. However, the respondent’s father assured the appellant that she had recovered from the condition.

The couple got married, and three children were born to them out of the marriage. However, thereafter, things started turning around, and the couple started living separately. The appellant had sought annulment of marriage on the ground that his consent to marriage was obtained by fraud. He sought judicial separation on the ground that the respondent had treated him with cruelty and there was a reasonable apprehension of harm if he continued to live with her. The appellant also sought divorce on the ground that the respondent had been mentally unsound and incurable for a continuous period of three years.

The appellant had alleged that the respondent abused him, his parents, and other family members. The respondent tore the mangal-sutra, sat beside the bed of the appellant at midnight to nag him, switched on the lights, and inflicted beatings on the infant children. The respondent, on the other hand, submitted that the appellant demanded excessive domestic discipline from her, which was very difficult to live with. The respondent was provoked by the appellant to act and behave in an improper manner. The respondent thus pleaded that she acted out of self-defence.

The Apex Court held that none of the demands made by the appellant would justify the plea of self-defence taken by the respondent. The Court observed that the acts of the respondent amounted to cruelty. However, the Court pointed out that Section 23(1)(b) of the HMA, provides that in any proceedings under the Act, the concerned relief can be granted only if the petitioner has not condoned the alleged conduct.

In the present case, the appellant had condoned the wrongful conduct of the respondent, and therefore, even though the wife was guilty of cruelty, the appellant was not entitled to the relief of judicial separation.

Naveen Kohli v. Neelu Kohli (2006)

In this case, the Supreme Court recommended that the Union of India seriously consider an amendment to the Hindu Marriage Act, 1955, to incorporate irretrievable breakdown of marriage as a ground of divorce.

The appellant husband and the respondent wife were married, and three sons were born to them. Thereafter, the appellant filed a petition for divorce, contending that the respondent had rude behaviour and quarrelled and misbehaved with the appellant and his parents. The appellant also pleaded that he had also found the respondent in a compromising position with one Biswas Rout. The appellant stated that the respondent registered false cases against him and tried to get him arrested.

The respondent sought maintenance during the pendency of the case before the trial court. However, her plea was dismissed by the trial court. Finally, the trial court concluded that the marriage should be dissolved and directed the appellant to pay Rs. 5,00,000 as permanent maintenance to the respondent. The respondent filed an appeal before the Allahabad High Court, and the High Court set aside the order of the Trial Court and dismissed the appellant’s plea for divorce. Thereafter, the matter went to the Supreme Court. The Supreme Court, while noting that cruelty includes physical, mental, as well as deliberate harm, held that the actions of the respondent amounted to cruelty and ordered the dissolution of marriage. The appellant was directed to pay Rs. 25,00,000 as permanent maintenance to the respondent.

Rakesh Raman v. Kavita (2023)

In the recent case of Rakesh Raman v. Kavita (2023), the appellant husband filed a suit for dissolution of marriage. The trial court allowed the application, but it was set aside by the High Court on appeal. Subsequently, the husband filed an appeal before the Supreme Court. The husband had alleged that the wife used offensive words and got her pregnancy terminated without informing him. The trial court had recorded findings on cruelty and dissertation in favour of the appellant husband.

The Supreme Court noted that the parties to the marriage have lived separately for the past 25 years. All the efforts to restore cohabitation had failed. Moreover, there was no child born out of wedlock. The parties had leveled bitter allegations of cruelty against each other. Moreover, they had filed several cases against each other.

The Supreme Court held that the repeated filing of criminal cases by one party against another amounted to cruelty. The Court held that the continuation of the marriage would be cruel to the parties, and even if irretrievable breakdown is not a ground for divorce, cruelty has been enumerated as one of the grounds. The Court held that where a marriage is irretrievably broken and each party is treating the other with cruelty, then the marriage must be dissolved. The Court thus upheld the order of the trial court.

Divorce under the Special Marriage Act, 1954

In most legal systems, the grounds for judicial separation and divorce are the same. A similar scheme has been adopted under the Hindu Marriage Act, 1955, where Section 10 enumerates grounds for judicial review that are similar to the grounds for divorce enumerated under Section 13. However, one of the peculiar features of judicial separation under the Act is that, besides the grounds that are similar to those for divorce, the Act provides an additional ground that is clearly applicable in a plea for judicial separation.

While all the grounds for judicial separation provided under Section 23 are also grounds for divorce under Section 27 of the Special Marriage Act, 1954, non-compliance with the decree of conjugal rights is not a ground for divorce under the aforementioned Act.

Divorce under Parsi Marriage and Divorce Act, 1936

Section 32 of the Act provides the grounds for divorce. The grounds are as follows:

If the marriage has not been consummated within 1 year of its solemnization due to the wilful refusal of the defendant.
If the defendant was of unsound mind at the time of marriage and has been so up to the date of the marriage. However, a decree for divorce cannot be granted if the plaintiff was aware, at the time of marriage, that the plaintiff is of unsound mind. Moreover, in order to avail the divorce under this ground, the plaintiff must file the suit within 3 years of the marriage.
The defendant has been of incurable unsound mind for a period of more than 2 years.
The defendant was at the time of marriage pregnant by any person other than the plaintiff.
If the defendant commits bigamy, adultery, fornication or rape of unnatural nature.
If the defendant causes grievous hurt to the plaintiff or has inflicted the plaintiff with venereal disease.
If the husband compels the wife to undertake prostitution.
If the plaintiff ceases to be a Parsi.
If the defendant is sentenced to imprisonment for 7 years or more for any offence under the Indian Penal Code.
If the defendant deserts the plaintiff for a period of 2 years or more.

It is pertinent to note here that Section 32 provides that in a suit for divorce, it will be at the discretion of the court to decide whether a decree shall be granted for divorce or for judicial separation, as stated in Section 34.

Divorce under the Dissolution of Muslim Marriages Act, 1939

Section 2 of the Dissolution of Muslim Marriages Act, 1939, provides the grounds on which a Muslim woman can file a suit for divorce. Some of the grounds include:

If the husband fails to provide maintenance to the wife for a period of 2 years.
If the wife is unaware of the whereabouts of the husband for 4 years.
If the husband is imprisoned for a period of 7 years or more.
If the husband fails to perform, without any reasonable cause, for a period of years or more.
If the husband has been insane for a period of two years or more or has been suffering from leprosy or some virulent venereal disease.
If the husband was impotent at the time of marriage and continues to remain so till the time of the filing of the suit.
If the woman was married before she attained the age of 15 years and she repudiated the marriage before she attained the age of 18 years.

Scope of judicial separation and divorce

The Delhi High Court explained the scope of judicial separation and divorce in the case of Vinay Khurana v. Shweta Khurana (2022). The Delhi High Court held that, as per the scheme of the Hindu Marriage Act, there is a qualitative difference between judicial separation and divorce.

A marital relationship is not terminated by a decree of judicial separation, but a decree of divorce puts an end to the jural relationship between the husband and the wife and liberates them of their legal marital obligations. A decree of judicial separation can be rescinded by the same court that granted the decree, but a decree of divorce can be reversed only when a judicial order is passed to that effect, either in an appeal or a review. If an order for divorce is passed ex parte, then it may be reversed on an application filed to set aside the ex parte order.

Difference between judicial separation and divorce : a tabular representation

Points	Judicial separation	Divorce
Time for filing petition	A petition for judicial separation can be filed at any time after marriage.	A petition for divorce can only be filed after one year of marriage.
Stages of granting a decree	Under a petition for judicial separation, there is only one stage of judgement. If the grounds are satisfied, a decree is granted.	Under a petition for divorce, the judgement is a two-step process, where attempts are made first for reconciliation, and if that fails, a divorce decree is granted.
Effect	A decree on judicial review will lead to a temporary suspension of marriage.	A divorce decree will bring a marriage to an end.
Remarriage	The parties cannot remarry after the passage of the decree.	The parties can remarry once a divorce decree in their favour is passed.
Ground for divorce	It is one of the grounds for divorce.	NA
Basis for granting the decree	A single instance of adultery is sufficient for judicial separation.	Living in an adulterous relationship or satisfying any grounds stated under particular sections, depending on the legislation, is necessary.
Reconciliation	There is a possibility of reconciliation.	There is no possibility of reconciliation.
Right to inheritance	Under a decree of judicial separation, the right to inheritance remains enforced.	Whereas, under the divorce decree the right to inheritance ends once the divorce decree is passed.

Petition for divorce or judicial separation

Under Hindu Law

A petition for divorce or judicial separation can be filed in a district court within the jurisdiction of whose:

The marriage was solemnised.
The respondent, at the time of presentation of petition, resides.
The parties to marriage last resided together.
The petitioner is residing, in case the respondent is outside territory of India.

Under Section 21 of the Act, all proceedings under this Act shall be regulated by the Code of Civil Procedure, 1908.

Under Order VII, Rule 1 of the CPC, every petition for divorce or judicial separation must contain:

The place and date of marriage,
Affidavit of being a Hindu,
Name, status, and domicile of husband and wife,
Name of children, their sex, and date of birth,
Full particulars of any litigation filed before the presentation of the petition for divorce, and
Evidence of the grounds for divorce or judicial separation. For example- in case of cruelty, specific act of cruelty, medical report, place of cruelty, etc.

After filing the petition, the other party is summoned. Both parties are required to furnish evidence to strengthen their claim. After the furnishing of evidence is over, the judge hears the arguments of each side and passes a decree. Appeals against the decision of the lower court can be made to a higher court.

Under Parsi Marriage and Divorce Act, 1936

Any of the parties to a Parsi marriage can file a suit for divorce under Section 32 of the Parsi Marriage and Divorce Act. The court will decide the suit depending on the merits of the case. Once a decree for divorce is passed by the court under the Act, it is registered in a register by the Registrar of Marriages.

Under Muslim Law

A Muslim woman can seek a decree of divorce under Section 2 of the Dissolution of Muslim Marriages Act, 1939. Divorce obtained under this provision is known as judicial divorce. However, there is also the concept of extra-judicial divorce under Muslim law. Parties can also seek extra-judicial divorce by mutual agreement.

Family courts

Family courts have been established in India under the Family Courts Act, 1984, for the purpose of dealing with suits and proceedings relating to family disputes. These courts are established by the state governments after consultation with the concerned high courts. The judges of these courts are also appointed by the state governments with the concurrence of the high court.

The main objective of the family court is to protect and preserve the institution of marriage. They encourage settlement between the disputing parties through conciliation. They are not bound by the provisions of the Indian Evidence Act, 1872. The family courts are free to determine the relevance and admissibility of the evidence on a case to case basis. Moreover, women are given priority in relation to appointments as judges of family courts.

Section 7 of the Family Courts Act, 1984, deals with the jurisdiction of the family courts. These courts have the jurisdiction to try any suit or proceeding relating to judicial separation and divorce. Besides divorce and judicial separation, these courts also decide disputes relating to:

Maintenance,
Custody or guardianship of a minor,
Maintenance,
Division of property.

Section 8 of the Act provides that the district courts or other subordinate civil courts will not have jurisdiction over matters that can be heard by the family courts. Thus, the district courts or the subordinate civil courts cannot entertain the suits and proceedings over which the family courts have jurisdiction.

Some relevant questions on the difference between judicial separation and divorce

Is it possible to file for a divorce while the period of judicial separation is in continuance?

At any time after the pronouncement of the decree of judicial separation, a petition for divorce can be filed. However, where judicial separation has been taken within 12 months of marriage, a petition for divorce can be presented after one year of marriage.

Can a decree of judicial separation be converted to a decree of divorce?

Yes, a decree of judicial separation is one of the grounds for divorce. After a decree of judicial separation is granted and a petition for converting it into divorce is presented, the court will not inquire into any grounds for divorce and will grant a divorce.

Does judicial separation mean living in different homes? Or can one undergo a judicial separation while living inside one home?

Judicial separation does not require spouses to stay in different places. They can reside under a common roof. Only their conjugal duties toward each other come to an end.

What to do in case a husband tries to establish physical relationship forcefully with his wife while undergoing a judicial separation?

If a husband tries to establish a physical relationship with his wife during the period of judicial separation, he will be charged under Section 376(A) of the IPC, wherein he will be punished with imprisonment up to 2 years and a fine.

What is the difference between judicial separation and separate residence?

Section 18(2) of the Hindu Adoptions and Maintenance Act, 1956, provides the grounds under which the wife can claim separate residence from her husband. While there is some overlapping similarity between judicial separation and separate residence, the two are different in principle. Where a decree of judicial separation has been passed, the parties need to get it rescinded if they want to resume cohabitation. However, rescinding the decree is not mandatory in the case of a decree for separate residence, and the parties can resume cohabitation at their own will.

There can be a situation where a Hindu wife wants to live separately from her husband and receive maintenance from her, but no grounds for judicial review or divorce are available to her. In such a scenario, the wife can seek remedy under Section 18 of the Hindu Adoptions and Maintenance Act, 1956. This Section provides that a Hindu wife can seek separate residence from her husband on the following grounds:

Where the husband deserts or wilfully neglects his wife. Derserting has been defined as the abandonment of the wife against her will and consent.
Where there is a reasonable apprehension that, due to the cruel nature of the husband, any injury may be caused to the wife if she resides with the husband.
Where the husband has any other living wife.
Where the husband is afflicted by the disease of leprosy.
If the husband keeps any concubine in the same residence where the wife resides.
If the husband has converted to any other religion and has ceased to be a Hindu.

However, a Hindu wife cannot claim the relief of separate residence if she is unchaste or has converted to another religion and has ceased to be a Hindu.

Can the court pass an order of judicial separation where an application for divorce has been filed?

The courts are competent to pass an order of judicial separation in proceedings relating to the nullity of marriage. If a petition for divorce has been filed and the petitioner fails to establish any ground for divorce but is able to successfully establish a ground for judicial separation, then the court may pass an order of judicial review. The court may grant a decree for judicial separation if the petitioner prays for the relief of judicial separation in an application for divorce.

In the case of Vira Reddi v. Kishtamma (1969), the Madras High Court held that the petitioner may plead for judicial separation in a petition for divorce even at the appellate stage. This discretion has been vested in the courts to enable them to protect and preserve the institution of marriage, which is regarded as sacrosanct in Indian society.

However, if a petition for divorce has been filed on the grounds of religious conversion, presumption of death, or renunciation of the world, then the court cannot exercise its discretion to grant judicial separation instead of divorce.

Conclusion

Before 1955, there was no provision for separation or divorce. Reforms introduced in Hindu law by way of legislation and amendments are a welcome step by the government. The two reliefs granted by the Hindu Marriage Act, 1955, have proven to be effective in resolving disputes between parties by giving them an opportunity to reconcile their differences or by releasing them from marital ties.

The grounds for judicial separation and divorce are expressly enumerated under the various personal laws. While most of the grounds are similar across all legislation, there are some differences with regard to the grounds for divorce under the various personal laws. It can also be seen that, while irretrievable breakdown of marriage is not expressly mentioned as a ground for divorce, the courts, through the constructive interpretation of statutes, have granted divorce in certain cases on grounds of irretrievable breakdown.

Frequently Asked Questions (FAQs)

Is judicial separation the same as divorce?

No, judicial separation is not the same as divorce. Under judicial separation, the parties do not have the right to cohabit with each other but remain legally married. They are free from interference by each other, but they are not allowed to remarry.

What is the duration of judicial review?

The period of judicial separation is one year.

Can a husband and wife stay separated without divorce?

Yes, the husband and wife can stay separated without divorce. If either of the parties obtains a decree of judicial separation, then the other party will lose the right to cohabit. Thus, the parties will be legally entitled to stay separate from each other.

Can judicial separation and divorce be used interchangeably?

No, the two terms are different in their meanings and thus, cannot be used interchangeably. In judicial separation, the parties continue to be legally married even though they may not cohabit. However, under divorce, the marriage of the parties is dissolved, and they are legally allowed to remarry.

References

https://www.jstor.org/stable/43949675

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