Judicial Separation or Divorce

This article has been written by Yash Dodani, a first-year student at NALSAR University of Law. He has tried to explain the concepts of Judicial separation and Divorce and set a difference between these two.

INTRODUCTION

The Hindu Marriage in Indian society is considered as a sacrament. It means that the Hindu marriage by its creation can’t be revoked by any chance. It is considered in the Hindu Rituals that the Hindu Marriage is made by the god and can’t be broken by humans. Before the enactment of the Hindu Marriage Act, 1955 [here referred to as “Act”] there was no method available for either of the parties to get the marriage dissolved if there are any issues with the marriage. As soon as the Act passed, the parties have got the grounds under which they can file a petition of either divorce or Judicial separation. The 1076 Amendment in the Act makes the grounds for judicial separation and divorce common. However, these pleas are not the same. There is a substantial difference between these two which I will discuss in the coming parts.

Read: Hindu Marriage: Is it a Sacrament or a Civil Contract

Meaning of Judicial Separation

When the parties to the marriage want to live separate from each other legally, despite being legally married. They file a plea under section – 10 of the Hindu Marriage Act by which they can formalize a de facto separation while remaining legally married. Upon approval of the plea filed, the couple is said to be ‘judicially separated’. This legal process is called Judicial Separation. Upon which they are no longer required to fulfil conjugal rights. There are however some obligations that need to be fulfilled. Either party is not allowed to remarry during the time of such separation. If they do so, they can be booked under section 494 of the IPC for adultery. A time of one year is given to the parties to resolve their issues if they can. In other words, the time is given in order to get a settlement done. 

There are various grounds available to parties under section 13[1] of the Act to file a plea of judicial separation which are same as divorce as stated above.

  • Adultery:  if the spouse has voluntary sexual intercourse with any other person other then his/her spouse, he/she can apply for judicial separation.
  • Cruelty: when any spouse after the marriage is treating another spouse with harsh nature. The courts are left upon to decide the cruelty.
  • Desertion: if the party has left the household of husband, without having reasonable ground for a continuous period of 2 years just before the presentation of the petition.
  • Conversion: if either of the spouses has converted and changed his/her religion, then this ground may apply.
  • Insanity: when after marriage, either of the party becomes/is of unsound mind, the petition of judicial separation can be filed.
  • Renounced the World: if either of the party has renounced the world by voluntarily entering into a religious order.
  • Has not been heard alive for seven years: if the spouse has not heard of the living of another, nither his/her close relatives have heard him/her for a period of seven years.

There are some other grounds which the Hindu Marriage Act has specified for only women. These are some grounds specified below:

  • Husband has more then one wife living: if the husband has more then one wife at the time of marriage, the wife can file a petition of judicial separation and the husband can be booked under section 494, 495 of IPC.
  • If the husband has in any time was convicted of rape, before or after the marriage.
  • If the woman has married before the age of 15 years and wants to file a petition of judicial separation, she can do it before turning to the age of 18.

The courts in the petition of judicial separation can also deal with the question of maintenance. Provided that during the time of the separation, the wife is in such a condition that she can’t maintain herself and but for the maintenance by the husband, she will be in harsh condition.

This decision was given by the Punjab and Haryana High Court in the case of Sohan Lal v Kamlesh[1] where the Court held that the maintenance can be given under the time of judicial separation where the wife is not able to maintain herself. 

Now, what if the parties have settled together and want to cohabit again? Since the judicial separation does not make the marriage dissolved, the parties can at any time in that separation or even after that, may file  a petition in the court asking to rescind the decree of judicial separation. However, the petition can only be filed once both the parties have consented to it and they really want to cohabit again.

The whole purpose of judicial separation is to give some time to parties to think over the decision of divorce if they want to take in the future. However, we have seen a conflict between the judicial separation and restitution of conjugal rights under section 9 of the Hindu Marriage Act. The courts have also sometimes converted the plea of judicial separation to restitution of conjugal rights. Irrespective of that the whole purpose of judicial separation is to give some time to the parties to reconcile their differences. It is a step before the petition of divorce.

Divorce

Divorce is a stage where the parties either decide by mutual consent or by the wrong of the other spouse, the marriage is dissolved. When the marriage is dissolved, the parties are permanently set away from the rights and obligations in the marriage. The parties are no longer be considered as husband and wife. However, they are allowed to marry again if they wish so.

There are three theories of divorce which are prevalent in the world. These are:

  1. Fault Based theory: this divorce theory means when the party is seeking divorce due to wrong of other spouse say adultery, conversion, rape etc. In simple terms when one of the spouses does anything which is prohibited by law in terms of marriage, the affected party can file a petition for divorce. 
  2. No-fault Theory: in this divorce, the petition is filed by the mutual consent of the parties. It is not necessary that there should be any wrong by either of the party.
  3. Breakdown of Marriage Theory: this theory coverts that part where the marriage is so broken down that it can’t be resolved again and compulsory divorce will be given. This theory is not used in India often but the Supreme Court has used the power under Article 142 of the Constitution to allow such divorce.

Grounds for Divorce

The grounds for divorce are the same as that of judicial separation. The parties are free to file a petition for divorce if there is no resolution of differences between the husband and wife in the times of judicial separation. If the court has earlier ordered the decree of Restitution of Conjugal rights under section 9 of the Act, and if the parties do not comply with it wholely or are not able to cohabit, the court will upon the presentation of a petition of the divorce by either of the parties, will not look into any ground and allow divorce. If the court finds no merit in the petition of divorce or thinks that the act is not so grave that the parties are not likely to divorce, it can change the petition into Judicial separation from divorce even if the petition has not asked for it. In the case of Vimlesh v Prakash Chandra Sharma[2] the court said, one instance of cruelty is not enough to file a petition of divorce and converted the petition to judicial separation so as to give some time to reconcile.  

Difference between Divorce and Judicial separation

Divorce Judicial separation
It can be filed after one year of the marriage. It can be filed at any time after the marriage.
Generally, a two-step process is used, first is the cool off period and then divorce is granted if nothing comes out good for the parties. Only the grounds needs to be satisfied.
Permanent dissolution of marriage. Temporary suspension of rights and obligations.
The persons can remarry after the procurement of decree of divorce. The parties can’t remarry after the procurement of decree of judicial separation.
In divorce, the courts presume that there is no possibility of reconciliation. There is a possibility of reconciliation.

Conclusion

I leave on you to determine whether the Hindu Marriage in current times a sacrament or a civil contract. There is a difference between divorce and Judicial separation which I discussed above.


[1] AIR 1984 P H 332

[2] AIR 1992 All 260

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