Difference Between Judicial Separation and Divorce

In Indian culture, marriage is viewed as a sacrament. It is considered an unbreakable relationship formed by rituals and traditions between a husband and wife. Before 1955, neither partner had any recourse in the event of a broken marriage. They had no choice but to stay together and were unable to part ways.

Things altered in favor of both parties in the marriage after the adoption of the Hindu Marriage Act in 1955. In the event of a failed marriage, the parties no longer have to suffer to carry the relationship and can easily end it by judicial separation or a divorce judgment.

The legal basis for judicial separation and divorce is established by the 1976 Marriage Laws (Amendment) Act. The parties must select which of the two dissolutions is best for them.

On the other hand, the legal implications of judicial separation and divorce are different. A divorce puts the last nail in the coffin of a marriage, whereas judicial separation allows the parties to reach an agreement.

What is Judicial Separation?

Any spouse in a marriage, whether solemnized before or after the Act's commencement, can file a petition for judicial separation under Section 10 of the Hindu Marriage Act, 1955. The parties are not obligated to cohabit after a decree has been issued in their favor. However, there are still some matrimonial rights and obligations to be taken care of 

• They are not allowed to remarry during the separation time 
• They are free to live independently of one another
•  All rights and responsibilities are suspended during the separation 
• Judicial separation is based on the same grounds as divorce

Grounds for Judicial Separation

As per Section 13 (1), judicial separation may be filed for the following reasons:

• Adultery -

When one spouse has a consenting sexual relationship with someone other than his or her spouse after the marriage is solemnized. Understand More about Adultery Laws in India

• Cruelty -

In cases where one spouse treats the other cruelly in the marriage 

Learn More: Cruelty As A Ground for Divorce in India

• Desertion -

In case one spouse abandons the other, for two years or more, without giving a justifiable reason before filing the petition.

Learn More: Desertion As A Ground For Divorce

• Conversion -

If one of the spouses changes their religion

• Insanity -

If the other party is mentally ill or has been suffering from a mental disorder for a long time to the point where the petitioner is unable to live with them.

• Venereal disease -

If the other party has been infected with a contagious kind of venereal disease.

• Renounced the world -

If one spouse has abandoned the world by joining a religious group

•  No proof of existence for seven years

In addition to these grounds, there are a few that are created entirely for women:

• Husband has more than one living wife -

If the husband married before the Act's enactment and then remarried after the Act's implementation, either of the wives can file a judicial separation petition, as long as the other woman is alive at the time the petition is filed

• Rape, Sodomy, or Bestiality -

If a man is found guilty of rape, sodomy, or bestiality, the wife has the right to submit a judicial separation petition

Example of Judicial Separation

Preeti and Kunal are married. They fought shortly after their marriage about eating fast food for dinner. The fight became so heated that they went to court to declare that they no longer want to be together. A judicial separation decree was issued by the court. If with time, they come to an understanding and begin living together again, then the goal of granting judicial separation has been achieved. 

However, if they are unable to come on the same page after the specified period, this can be cited as grounds for divorce. 

Procedure to file for Judicial Separation

The Hindu Marriage Act, of 1955, provides for judicial separation as a means to dissolve a marriage under Hindu law, with the provision of a one-year grace period for reconciliation.

The procedure for obtaining a judicial separation decree is the same as the procedure for obtaining a divorce decree between the two spouses. The spouse seeking judicial separation must file a petition for judicial separation with the district court or family court, stating the ground or grounds for judicial separation. The spouses can acquire judicial separation if the court is pleased with the grounds and the case is properly laid out.

The majority of personal laws have been codified under Muslim law, and rituals and laws are carried out by the Holy Quran and Hadiths. The Dissolution of Muslim Marriage Act of 1939 and the Muslim Women (Protection of Rights on Marriage) Act of 1986, for example, make no provision for judicial separation. Understand more about the Provision of Muslim Law on Divorce

What is a Divorce?

When a marriage ends in divorce, all mutual rights and obligations are dissolved as well. Both parties are free to remarry.

Difference Between Judicial Separation and Divorce

Although the grounds for Divorce and Judicial Separation are the same, the procedures for both are very different.

If the two parties, husband and wife, are granted a divorce judgment, the marriage dissolves and the parties are free to form new domestic relationships with other persons. If the two parties are granted a judicial separation judgment, they are still regarded as married and hence are unable to get into new relationships.

The judicial separation procedure requires only one judgment, but the divorce procedure requires two judgments, one when the petition is filed and the second six months later.

When considering a petition for judicial separation, the judges assume that the couple will be able to reconcile and continue cohabitation, however when hearing a divorce petition, the judges are more concerned about the marriage's permanent dissolution.

FAQs

1. Can I get a Divorce after Judicial Separation?

It is possible to get divorced after judicial separation but judicial separation is not possible after divorce, therefore judicial separation is a divorce ground. So yes, it is possible to get divorced after Judicial separation.

2. How long can Judicial Separation last?

Judicial separation is the period preceding the divorce. Before the divorce process may begin, the court requires a time of separation. Under all personal laws, the judicial separation period is for one year.

3. Can you remarry after Judicial Separation?

One cannot remarry after Judicial Separation. Only divorce allows parties to remarry.

4. Can the wife claim maintenance during judicial separation?

According to the Supreme Court, a judicially separated wife is entitled to maintenance just like a divorced wife, and there is no reason to refuse her. Understand Maintenance Laws For Divorced Women In India.

About The Author:

Adv. Akanksha Magon brings 14 years of robust experience in the New Delhi High Court and district courts. Specializing in family law, including divorce and child custody, as well as consumer protection, 138 NI Act cases, and other civil matters, she ensures clients receive astute counsel and representation. Her deep understanding of the legal landscape allows her to adeptly navigate diverse legal concerns, from contract disputes to property conflicts. At the core of her practice is a steadfast commitment to providing tailored, top-tier legal guidance for each individual she represents.