Legal Agreements

Is Judicial Separation the same as Divorce?

calendar02 Jun, 2023
timeReading Time: 7 Minutes
Is Judicial Separation the same as Divorce?

Marriage is a ritual in India, especially among Hindus, and not only a contract. Since divorce is regarded as an immoral act, Hindus did not consider dissolving their marriages until the Hindu Marriage Act of 1955[1]. Even now, divorce is not something that courts allow easily. The concept behind marriage is that it continues for a lifetime, and a divorce is only an option if staying married is impossible. There are two options available to couples in India when marital responsibilities are put on hold: judicial separation and divorce.

What is Judicial Separation?

Judicial Separation is a legal process through which a married couple can live separately from each other without obtaining a divorce. The Hindu Marriage Act of 1955 and the Special Marriage Act of 1954, which are the main legislation governing marriage issues in India, regulate judicial separation. A court of law may grant judicial separation, typically on the grounds of cruelty, desertion, adultery, or mental illness. The couple is no longer obligated to live together after a judicial separation has been granted, but they are still legally married and cannot be remarried.

The couple is free to negotiate and come to a decision on issues like maintenance, child custody, and property distribution during the judicial separation process. These agreements, however, are not enforceable and can be changed by the court. During the period of judicial separation, if the couple decides to get back together, they can ask the court to annul the separation order. On the other hand, either party may file for divorce if the separation time has lasted longer than a year.

What is Divorce?

Divorce is a legal procedure that dissolves a couple’s marriage. A Hindu couple may file for divorce under the Hindu Marriage Act of 1955 on a number of grounds, including abuse, abandonment, and adultery, conversion to another religion, mental condition, and mutual consent. The Special Marriage Act of 1954 allows for divorce by consent as well as on the grounds of cruelty, abandonment, conversion to a different religion, mental illness, and venereal disease.

Muslim couples in India may divorce under the Muslim Personal Law (Shariat) Application Act, which was passed in 1937. According to this rule, a Muslim husband may legally separate from his wife by saying “talaq” (divorce) three times in front of witnesses. However, in 2017, the Supreme Court of India ruled that the “triple talaq” practice was unconstitutional, and it is no longer a valid form of divorce in India.

Grounds to obtain a Judicial Separation

The Special Marriage Act of 1954 and the Hindu Marriage Act of 1955 both include several reasons for granting judicial separation.

  • Cruelty:

Legal separation may be warranted if one spouse is abusing the other in any way, whether it is physically or mentally.

  • Adultery:

If one spouse is discovered to be having extramarital affairs, it may be cause for judicial separation.

  • Desertion:

Desertion is a legal basis for judicial separation if one spouse has abandoned the other without adequate justification for a continuous period of at least two years.

  • Conversion:

A spouse’s decision to convert to a different faith and the other spouse’s refusal to do the same can provide grounds for judicial separation.

  • Mental Illness:

If one spouse has a mental illness that makes it hard for them to live together, this may be a reason for judicial separation.

  • Non-Resumption of Cohabitation:

This might be a basis for judicial separation if the spouses have been living apart for a continuous period of one year or longer and have not started cohabiting since.

Additional grounds for the wife to claim judicial separation:

  • Bigamy:

It means if the husband is remarried while he is already married, both of his wives have a right to claim the petition for judicial separation with the condition that the other wife is also alive at the same time of filing.

  • Rape, Sodomy, or Bestiality:

If the spouse commits crimes like rape, bestiality, or sodomy after the marriage, the wife has the right to file a petition for judicial separation.

  • Rejection of Marriage:

A girl has the right to request judicial separation if her marriage took place before she was 15 years old.

Grounds to obtain for Divorce

The grounds to obtain Divorce are as follows:

  • Adultery:

One spouse cheated on the other.

  • Cruelty:

One spouse has treated the other spouse cruelly, either physically or mentally.

  • Desertion:

For a continuous period of at least two years, one spouse has abandoned the other.

  • Conversion:

One spouse has converted the religion they were married under and became a follower of another religion.

  • Mental Disease:

The continuation of the marriage is complicated by one spouse’s suffering from a mental disorder or other incurable disease.

  • Unsoundness of Mind:

One spouse is unable to give a legally binding commitment to marriage due to their state of mind.

  • Mutual Consent:

Both partners voluntarily choose to end their marriage.

  • Irretrievable Breakdown of Marriage:

The Marriage Laws (Amendment) Act, 2019, added this ground, which enables a party to file for divorce if the marriage has irretrievably dissolved and it is impossible to maintain the relationship.

  • Renunciation:

One spouse has renounced the world and entered into a religious order.

  • No Resumption of Cohabitation:

The parties have lived separately for a continuous period of at least one year, and there is no possibility of resuming cohabitation.

Difference between Judicial Separation and Divorce?

Divorce and judicial separation are both legal processes that allow a married couple to live separately from each other. But there are some significant variations between the two:

  • Legal status: A divorce causes the marriage to be legally dissolved, whereas a judicial separation permits the couple to live apart while still being married legally.
  • Grounds: Legal separation is granted when there has been cruelty, abandonment, or adultery, whereas divorce is normally granted when there has been a permanent breakdown of the marriage.
  • Effect on property: Property is divided between the couples in a divorce, but in a legal separation, unless the court determines differently, the property remains jointly owned.
  • Remarrying: Following a divorce, either party may remarry; but, following a judicial separation, the couple remain legally wed and are not permitted to remarry.
  • Timeframe: Application for judicial separation under Hindu law can be filed under Section 10 of Hindu Marriage Act, 1955 any time after marriage. Application for divorce under Section 13 of Hindu Marriage Act, 1955 can be filed only after the expiry of at least 1 year of marriage.
  • Process: Divorce is a two-step process. First for reconciliation and then for divorce. But judicial separation is a one step process.

How to file a petition for Divorce or Judicial Separation?

  • Gather Necessary Documents And Evidence: The marriage certificate, proof of address, and documentation to support the grounds for divorce or judicial separation are a few of the documents and proof you’ll need to collect.
  • Prepare the Petition: Prepare the petition, which should contain the names of the parties, the reason for the divorce or judicial separation, and any other pertinent information.
  • File The Petition: Depending on your place of residence or the location of the marriage, the petition must be filed in an appropriate court. You must submit the petition with all appropriate supporting documentation and pay the necessary court fees.
  • Provide Notice To The Opposing Party: After filing the petition, you must provide notice to the opposing party (spouse) and give them an opportunity to respond to the petition.
  • Attend Court Proceedings: The petition will be reviewed by the court, and the court will announce hearing dates to hear the arguments of the parties. These hearings must be attended in order for you to argue your case.
  • Final Court Decision: The court will make a decision about the petition for divorce or judicial separation after taking into account all of the evidence and arguments.
  • Obtaining A Copy Of The Decree: Obtain a copy of the divorce or judicial separation decree if the court accepts the petition.

Can Divorce Be A Judicial Separation?

No, judicial separation and divorce are two different legal procedures, and one cannot be the same as the other. Judicial separation can lead to divorce, but divorce cannot lead to judicial separation. A judicial separation permits the partners to live separately without ending their marriage, whereas divorce is the legal dissolution of a marriage. In contrast to a divorce, when the parties are no longer legally married and are free to remarry, a judicial separation allows the spouses to remain legally married but restricts their ability to do so.

It’s important to remember that getting a divorce may sometimes be followed by a legal separation. The parties may be qualified to petition for divorce based on the grounds for divorce permitted under personal laws if they have been judicially separated for a specific period of time. The parties would still need to apply to the court for a divorce decree and submit separate divorce petitions.

Can Divorce Be Given After Judicial Separation?

Yes, a divorce can be granted following a judicial separation as long as the parties comply with the relevant personal law’s divorce conditions.

In fact, in some cases, getting a divorce may be followed by a judicial separation. The ability to petition for divorce on the basis of grounds granted by personal law may be available if the parties have been judicially separated for a specific period of time.

The parties would still need to submit a separate petition for divorce and secure a divorce judgment from the court. It is necessary to note that getting a divorce after legal separation may not be automatic.

Why Is Judicial Separation Better Than Divorce?

Depending on the particular circumstances of the parties concerned, the separation may be preferred than divorce in India.

  • Cultural And Religious Aspects: Divorce is considered taboo in India by many cultures and religions, and it may not be accepted as an appropriate decision. If the parties intend to reconcile in the future, judicial separation might be more socially acceptable.
  • Legal Requirements:  In India, obtaining a divorce can be a lengthy and complicated process that requires the parties to prove grounds for divorce, such as adultery, cruelty, or desertion. This can be a lengthy and challenging process. Contrarily, judicial separation does not need much justification, and parties can apply for it at any time during the marriage.
  • Financial Considerations: Divorce may occasionally be an expensive procedure, particularly if the parties are fighting a long-running legal dispute. Since couples can live apart while maintaining some of the financial advantages of marriage, judicial separation may be a less expensive option.
  • Children: To lessen the effect on the kids, the parties may choose judicial separation over a divorce if they have kids. Without interfering with the lives of the children, judicial separation enables the parties to live apart while analyzing their relationship.
  • Reconciliation: Legal separation provides the parties with the opportunity to live separately while they reevaluate their marriage and consider their options for getting back together. Contrarily, divorce terminates the marriage, and it’s possible that after it’s finalized, the parties won’t be able to get back together.

It is important to remember that while judicial separation may be an option for some people, it may not be a permanent solution for marital issues, and it may be necessary to pursue a divorce eventually.

Conclusion

In our culture, a marriage is referred to as a sacred union, yet if a person is unhappy in a marriage, they should have a way to end the relationship. Parties that are having problems in their marriage have the legal choices of judicial separation or divorce. The particular circumstances of each party will determine whether a divorce or separation is preferable.

Legal advice should be obtained before making a decision because judicial separation and divorce each have distinct financial and legal consequences. Before filing for a divorce or separation, it’s crucial that you evaluate all of your options and look into other options, like counseling and assistance, in an effort to save your marriage.

The choice to pursue a divorce or separation is ultimately a personal one that should be made after careful consideration.

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