Judicial Separation: An Overview

 

Copyright by Legal Ladder

Judicial Separation

Despite being legally married, judicial separation is a legal process through which a married couple is formally separated for a time span of around one year. A court order is mandated to establish the separation.

According to Section-10 of The Hindu Marriage Act:

1. Either party to a marriage, whether solemnised before or after the commencement of this Act, may present a petition praying for a decree for judicial separation on any of the grounds specified in sub-section (1) of Section-13, and in the case of a wife also on any of the grounds specified in sub-section (2) thereof, as grounds on which a divorce petition might have been presented.

2. Where a decree for judicial separation has been passed, it shall no longer be obligatory for the petitioner to cohabit with the respondent, but the court may, on the application by petition of either party and on being satisfied with the truth of the statements made in such petition, rescind the decree if it considers it just and reasonable to do so.

What is Judicial Separation?

Separation under a decree of the court is called judicial separation.

During the continuance of separation, parties are entitled to live separate from each other and all basic marital obligations remain suspended.

Mutual rights and obligations of marital intercourse and living with each other no longer remain operative.

Parties remain, husband and wife, if any one of them marry with some third person during the judicial separation, he or she will be guilty of bigamy. In the event of one of the parties dying, the other party will inherit the property of the deceased spouse. 

When is judicial separation allowed?

Judicial Separation can be allowed only if the marriage is valid.

If the marriage is not valid under law, judicial separation can not be legally allowed to them.

Void marriage

A void marriage is no marriage at all, the court considers a void marriage as if the marriage never existed.

The grounds for declaring a marriage void are as follows:

(1) Bigamy

If either spouse is already legally married to another person at the time of the marriage then the second marriage is void and no formal annulment is necessary.

(2) Prohibited Relationships

Inter Family Marriage - A marriage between an ancestor and a descendant, or between a brother and a sister, whether the relationship is by the half or the whole blood or by adoption.

(3) Sapinda Relations

Marriage between Close Relatives - A marriage between an uncle and a niece, between an aunt and a nephew, or between first cousins, whether the relationship is by the half or the whole blood, except as to marriages permitted by the established customs.

Voidable Marriage

A voidable marriage is binding and valid until the decree from the court is passed for annulling it.

Marriages that are void at the option of the aggrieved party are known as voidable marriages. 

A decree of nullity can dissolve such marriages for any of the reasons listed below:

1. Due to the impotence of the respondent the marriage has not been consummated.

2. The marriage was done with a mentally unsound person or suffers from recurring epilepsy attacks.

3. That the petitioner's or guardian's consent was gained by coercion or fraud as to the nature of the ceremony or any material fact or circumstance relating to the respondent.

4. To make this ground valid the Petition must be filed in the court within one year of the force ceasing to act or the fraud being exposed. It is also important that the Petitioner must not reside with the other party after the force has ceased or fraud has been found.

5. That the respondent was pregnant by someone other than the petitioner at the time of their marriage.

When can a party file for divorce after Judicial separation?

If the separation time period is completed by the parties properly, by following the legal conditions, any party may sue for divorce Section 13(1A)(ii) of the Hindu Marriage Act,1955, this can only be done if the parties are living separately under judicial separation it cannot be done if the parties are living separately under an agreement because Separation by an agreement it is not defined under Hindu Marriage Act, 1955. 

Grounds of judicial separation

Sometimes the ground of judicial separation and divorce are similar while in some cases, judicial separation and divorce grounds are different.

Grounds given under Section-13(1) are for both the parties (for the wife as well as for the husband), while grounds given under Section-13(2) are special grounds for the wife of the Hindu Marriage Act, 1955.

Usually, judicial separation is granted on certain specified grounds of Sub-section(1) of section-13 and Sub-section(2) of section-13, according to Section-10 of the Hindu Marriage Act, 1955.

Grounds according to Section-13(1) of The Hindu Marriage Act,1955

(i) Adultery

If one of the parties, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or 

1. Cruelty

If one of the spouses has, after the solemnization of the marriage, treated the petitioner with cruelty; or 

2. Desertion

If a spouse has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or

Explanation:

In this sub-section, the expression “desertion” means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent of or against the wish of such party and includes the willful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expression shall be construed accordingly. 

(ii) Conversion

 If a party has ceased to be a Hindu by conversion to another religion; or 

(iii) Unsound Mind

If one of the parties has been incurably of unsound mind, or has been suffering continuously or intermittently from a mental disorder of such kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.

Explanation:

1. The expression “mental disorder” means mental illness, arrested or incomplete development of mind, psychopathic disorder, or any disorder or disability of mind and includes schizophrenia ; 

2. The expression “psychopathic disorder” means a persistent disorder or disability of mind (whether or not included sub-normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party, and whether or not it requires or is susceptible to medical treatment; or 

(iv) Leprosy

If one of the spouses has been suffering from a virulent and incurable form of leprosy; or 

(v) Venerable disease

If a party has been suffering from venereal disease in a communicable form; or 

(vi) Renunciation of the world

If one of the parties has renounced the world by entering any religious order; or 

(vii) Presumption of death 

If one of the spouses has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive.

Section-13(2) A wife may also present a petition on special grounds

Bigamy:

In the case of any marriage solemnised before the commencement of this Act, that the husband had married again before such commencement or that any other wife of the husband married before such commencement was alive at the time of the solemnization of the marriage of the petitioner: 

Provided that in either case, the other wife is alive at the time of presentation of the petition; or 

Heinous crime:

If the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or;

Option of Puberty:

That her marriage (whether consummated or not) was solemnized before she attained the age of fifteen years and she has repudiated the marriage after attaining the age but before attaining the age of eighteen years.

This clause applies whether the marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (Act no.68 of 1976).

Petition for Judicial separation by the court itself

Even though neither of the parties made such a prayer of judicial separation, the Court has the power to pass a decree for judicial separation.

The Separation state can come to an end at the moment if the parties revoke the agreement for the parties to start cohabiting with each other. 

Difference between judicial separation and divorce

Judicial separation differs from divorce in both nature and degree

Difference

General Difference

(1) In general, we can say divorce is like dissolution and judicial separation is like a break-up for a limited time.

(2) In divorce, marriage is dissolved and both the parties become free from all boundaries of marriage. The parties after divorce become free to remarry. If they both want to remarry to each other, they can also do but they must solemnise the marriage properly before cohabitation. While, In judicial separation, the marriage is only eclipsed and both parties are not completely alienated, the doors of reconciliation are open. They can resume cohabitation without remarrying each other. 

In case if any party from them marries some other person during the judicial separation period, it will be called bigamy.

The writer is pursuing a degree of BA.LL.B (Bachelors of legislative law)

From, Department Of Law, Maharshi Dayanand University (Rohtak) Haryana, INDIA.

Reach her at Instagram @sakshiydv1108

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