An Overview of Judicial Separation
The laws related to marriage and divorce contains a provision related to judicial separation in India. This provision has been inserted with the intention to provide a reasonable time for both husband and wife to give a second chance at their marriage before approaching the court for seeking divorce and permanently dissolving the marriage.
When a court passes a decree of judicial separation, the parties to the marriage are ordered to live separately for a minimum time period of one year and get sufficient time to think about continuing or terminating the marriage. During the time period of judicial separation, the status of the parties subsist as husband and wife even if they live separately. Under Hindu Marriage Act, if either party to a marriage is willing to terminate his/her marriage, he/she needs to complete the time period of at least one year living separately from his/her spouse before approaching the court to seek divorce. The time period helps in solving the matrimonial disputes between the parties and there are chances of saving a marriage.
Filing petition for judicial separation
Either party to a marriage can file a petition before the court for claiming judicial separation in a district court under Section 10 of the Hindu Marriage Act of 1955. The following conditions must be satisfied for filing a petition under the Act:
It is mandatory that every petition must contain information as required under the Order VII Rule 1 of the Civil Procedure Code 1973. The information includes:
There are several grounds on which either party to a marriage can claim judicial separation. These have been mentioned under Section 13 of the Hindu Marriage Act of 1955:
Where to file the petition?
Either party willing to seek judicial separation from his/her spouse can file a petition for the same before a district court where:
- The marriage of parties has been solemnized, or
- The opposite party resides, or
- The place where the parties to the marriage last resided together, or
- The place where the petitioner resides at the time of filing the petition is due to certain circumstances.
What Are the Implications of Judicial Separation?
A judicial separation puts a break to marital obligations between the parties. It is often used in India to solve marital disputes concerning money, marital obligations and child custody, etc. A judicial separation has both, positive and negative implications for parties in India. These are as follows:
A judicial separation helps parties to resolve their marital problems and differences between them. The court order makes them do so under the obligation even if a party is unwilling to sort out problems with the other party to the marriage. It gives ample time to the married couple to re-think by being away from their partner without worrying about terminating the marriage permanently. This step can be taken by a party who has been aggrieved by the treatment of the other.
There are certain negative implications of a judicial separation which can be mentally harmful to the parties to a marriage. It often results in parties suffering from low financial support from the earning spouse. It becomes more problematic when the spouse has no income source and is completely dependent on the other spouse.
A judicial separation can also create legal barriers between the parties which can be difficult to overcome. For example: If a party to judicial separation is willing to re-marry, he/she needs to first take divorce by terminating their marriage.
Difference between Judicial Separation and Divorce
Even though the process of judicial separation and divorce proceedings is almost similar, there are certain minute differences between the two terms. These are as follows:
Therefore, judicial separation is a process where the court gives a final opportunity to the parties seeking divorce to resolve their issues in marriage before approaching the court for divorce proceedings. This provides a sufficient time period for the parties to resolve their disputes and misunderstandings for protecting their marriage.
Frequently Asked Questions
Either party to the marriage who is willing to live separately from his/her spouse, he/she can file a petition for judicial separation under Section 10 of the Hindu Marriage Act of 1955. The petition must contain the below-mentioned details:
- Personal details of parties to the marriage,
- The place and date on which the marriage took place,
- The rituals followed during the solemnization of marriage,
- The present living status of both parties,
- The grounds on which the party is seeking judicial separation, and
- The type of relief being claimed in the petition.
A petition for judicial separation can be filed by the petitioner in a family court or a district court where:
- The place where marriage was solemnized, or
- The place where both spouses resided together the last time, or
- The place where the wife or a husband is residing at the time of filing the petition for judicial separation.
- A divorce dissolves the marriage solemnized between two parties and ends all the rights and obligations of parties attached to marriage.
- A person is not legally allowed to remarry during the time of their separation. He/she can remarry only after the court has passed a formal divorce decree.
- A decree for judicial separation does not terminate the marriage between parties. This leaves a chance for reconciliation of marriage.
- It provides time for both parties to rethink before making a decision to terminate the marriage and make efforts to protect their marriage without any forceful obligations for residing together.
- It prevents parties from hastily ending their marriages.
- If the parties are unable to cohabit and solve the disputes, they can approach the court after one year.
- If a husband forces a wife to have sexual intercourse without her consent during the judicial separation, it will amount to rape.
Therefore, a husband is under an obligation to pay maintenance to his dependent wife during the time of judicial separation. It also gives sufficient time to the parties to think before terminating their marriage and giving it a second chance.
There are a few disadvantages of judicial separation. These are as follows:
- It is a complex process.
- The parties are under a lot of stress during the process.
- It can be needless for the relationship between the parties.