Judicial Separation in India

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:

• The marriage between parties must have been duly performed as per the provisions of the Act.
• The respondent should be comfortable in the jurisdiction of the court where the aggrieved party has filed the petition.
• It is mandatory for parties to the marriage to live together for a defined time period before filing such a petition.

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:

• The place and date of marriage between parties,
• The party filing the petition must be a Hindu,
• Personal details such as the name, status and address of husband and wife,
• Personal details such as the name, birth date and gender of the children born out of such wedlock, if any,
• Any litigation details occurred before the party filed a petition for judicial separation.

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:

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• Adultery: It is serious ground. It is an act where a party to a marriage involves in voluntary sexual intercourse with a person except his/her spouse.
• Cruelty: It can be mental or physical. An act is called cruel when a party to a marriage inflicts any mental or physical harm to the other party during the marriage, the aggrieved party can approach the court using cruelty as a valid ground.
• Desertion: It is an act where a party leaves or forsakes the other party without any reasonable cause for a time period of not less than 2 years from the date where the aggrieved party has filed a petition. It is a strong ground to be used by an aggrieved party to claim judicial separation.
• Conversion: Whenever either party to a marriage converts his/her religion into any other religion except Hindu, the aggrieved party has the right to claim judicial separation from the party who has converted his/her religion.
• Unsound mind: If a party to a marriage is suffering from an incurable mental disease which makes it difficult for the aggrieved party to live with him/her, then the aggrieved party has the right to seek judicial separation from the spouse having an unsound mind.
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• Leprosy: If a person is suffering from an incurable disease such as leprosy, the aggrieved party can approach the court for judicial separation.
• Venereal disease: If a party to a marriage is suffering from an incurable and communicable disease and information about such a disease was not known to the aggrieved party at the time of the marriage, this can become a valid ground to claim judicial separation.
• Renunciation from the world: If either party to a marriage has given up the world to lead a holy life, he/she is said to renounce from the world and is considered civil dead. This becomes a ground to file a petition for judicial separation.
• Presumption of death: If the whereabouts of a person are not known for 7 years or more and none of his/her has heard from him/her in the said duration, then such a person is presumed to be dead. It becomes a valid ground for a person to seek judicial separation.
• Bigamy: If a party to a marriage remarries another person at the time when he has an already legally wedded wife alive, both wives have the right to file a petition for judicial separation only when both wives are alive.
• Rape, sodomy or bestiality: If the husband is guilty of rape, sodomy or bestiality after being married, the wife has the right to approach the court for judicial separation.
• If a girl has got married before she has attained the age of 15 years, she has the right to approach the court to seek judicial separation.

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:

1. The marriage of parties has been solemnized, or
2. The opposite party resides, or
3. The place where the parties to the marriage last resided together, or
4. 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:

Positive Implication

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.

Negative Implication

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:

• A decree for judicial separation does not dissolve a marriage, whereas a divorce decree permanently terminates the marriage and parties no longer remain as legally wedded husband and wife.
• When a court hears a petition for judicial proceedings, it does not have to consider the fact that the marriage will be permanently ended whereas while hearing a divorce petition, the court needs to consider the fact about the termination of the marriage.
• Either party can approach the court for judicial separation anytime during the marriage whereas, in case of a divorce, either party is allowed to file a petition for divorce before the court only after the time period of one year of marriage is over.
• There is only one stage judgment process for judicial separation whereas, in the case of divorce, there is a two-stage judgment process.

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.