Marriage in India from the time immemorial was considered a sacred institution. Marriage is an institution which establishes a relationship with two people. Since it was considered sacred breaking of marriage was considered a sin. But with time this notion has changed and now if the partners what to stay separated they can get relief through the provisions of the Hindu marriage act. In this article, we discuss about the judicial separation and divorce.

Judicial Separation

Divorce and Judicial separation completely different from each other. Judicial separation as mentioned in section 10 of the Hindu Marriage act provides that the Judicial Separation for both the spouse, those who are married under the Hindu Marriage Act, 1955. They can claim the relief of Judicial Separation by filing a petition. Once the order is passed, they are not bound to have cohabitation.

It is a period of separation mandated by the court before the divorce proceedings can be started. Under all personal laws, the judicial separation period is for one year. The period of judicial separation gives time for resolving the matrimonial disputes and misunderstanding between the couple.

Difference between judicial separation and divorce

Judicial separation may seem similar to divorce in some aspect but it certainly has a lot of difference as well.

• Judicial Separation does not terminate marriage whereas in divorce the parties are no more husband and wife and hence the marriage ends
• While undertaking proceedings for judicial separation, the court does not have to consider that the marriage is permanently closed or broken down whereas in divorce it is required while presenting the petition.
• Both the parties can file for judicial separation any time post marriage whereas in case of divorce the parties can only file for divorce only after completion of one year of marriage.
• A judicial separation goes through one stage judgment procedure however; divorce goes through a two-stage judgment process.
• There are certain provisions in Matrimonial Causes Act 1973 that are applicable to divorce but are not applied to judicial separation petitions irrespective of going through a two- or five-years separation period.
• Judgments with respect to Wills are not applicable in case of Judicial separation. In case the parties are undergoing a separation time and if one of the spouses dies then the existing spouse will not be benefited out of it and thus the property will devolve.

Grounds of Judicial Separation

There are various grounds for judicial separation. Section 10 has remodelled under the Marriage (amendment) act 1976 and now the grounds for divorce as given under section 13(1) and 13(2) have been made the grounds for judicial separation while previously they were separate and different.

The grounds of judicial separation are as follows:

• Cruelty:

  Either of the spouse or both are cruel for one another.
  Case- Shyamsundar Vs. Santadevi
   

• Desertion:

  Either of the spouses is not alive and is missing for seven years and above.
  Case- Guru Bachan Kaur Vs. Preetam Singh
   

• Adultery:

  Either of the spouses is being cheated upon by other spouse. In case a husband or a wife knows that their respective spouse is married and that the other person is alive during this petition; then the grounds for judicial separation strengthens.
  Case- Revathi Vs. Union of India and Ors
   

• Conversion of Religion:

  Either of the spouses is forcing the other one to change and convert his/her religion.
  Case- In Durga Prasad Rao Vs. Sudharshan Swami
   

• Insanity or abnormality

  Either of the spouses is not in a sound condition.
  Case- Anima Roy Vs. Prabadh Mohan Ray (AIR 1969)
   

• Venereal diseases:

  Either of the spouses is suffering from venereal disease.

Conclusion
Judicial separation is a process where spouses rather than divorcing get time to reflect on the problems and misunderstanding in their marriage and try to resolve the problems between them if they are solvable. Judicial separation thus gives couples space to improve their relationship.

Source

• Indian Kannon
• Modern Hindu Law by Paras Diwan