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Judicial Separation And Divorce

When a married couple reaches a point in their relationship where it becomes extremely difficult for them to continue in each other's company, they can seek judicial separation or divorce. When a couple does not cohabitate but is nonetheless married, it is known as judicial separation. In society's view, the couple is still husband and wife. In a divorce, a couple is no longer legally married or cohabitating. Any obligations or rights resulting from a marriage in a divorce end when the divorce decision is granted.

Judicial Separation

The partners choose judicial separation when they are unable to coexist but do not wish to end their marriage. The British government introduced judicial separation as a remedy in India. The ecclesiastical courts did not support divorce under the common law system.

The only divorces granted by the ecclesiastical courts were for "divorcium a mens et thoro," meaning divorce from bed and board. The couple couldn't get married again after this type of divorce. Now that it has developed into Judicial Separation, the couple can live apart without being legally divorced.

Section 27 of Special Marriage Act of 1954 discusses judicial separation and provides the following explanation:

  1. Any party may file a petition to the district court for judicial separation on any of the following grounds:
    1. Any ground specified in Sections 27(1) and 27(1-A) on which a petition for divorce might have been presented;
    2. Where there was a failure to abide by the decree of restitution of conjugal rights.
    And if the party seeking relief under Section 23 is successful in persuading the court that his or her assertions are true, the court may order judicial separation in accordance with that order.
  2. The parties may live apart as per the judicial separation order. However, if either party approaches the court with an application to withdraw the order of judicial separation, the court is free to do so at any time. The court may revoke the decree of judicial separation once it is convinced that the declarant is telling the truth and believes doing so is reasonable.

The Hon'ble Punjab and Haryana High Court held in Bhagwan v. Amar Kaur, AIR 1962 Punj 144, that if sufficient grounds for divorce cannot be established in a petition for divorce, but a decree of judicial separation can be granted on those grounds, then the court is free to decree judicial separation even though it has not been prayed for.


A marriage ends when the couple gets divorced. Every responsibility and right arising out of a marriage is terminated once a divorce decision is issued. The freedom to remarry and live happily is another benefit of divorce. Section 27 of Special Marriage Act of 1954 specifies the grounds for which the parties may file for divorce.

The following are the grounds listed in Section 27(1) under which any person may file for divorce:


Adultery would be present if either partner had sexual contact with anyone other than their spouse. The grounds for divorce based on adultery are open to both the husband and the wife. Up until 2018, Section 497 of the Indian Penal Code classified adultery as a crime. However, the Hon'ble Supreme Court decriminalised adultery in Joseph Shine v. Union of India WP (Crl.) 194/2017. Adultery is, however, a valid reason for divorce.


The aggrieved spouse may file for divorce on the grounds of desertion if either partner has abandoned the other spouse for a continuous period of at least two years. The two-year window must end right before the filing of the divorce petition.

In the case of Lachman Utamchand Kiriplani v. Meena Alias Mota (AIR 1964 SC 40), it was decided that desertion not only constituted a physical separation, but also a virtual separation in which the spouses were still living together showed intentional indifference to the other spouse. Additionally, if a conjugal commitment is not fulfilled, it would be viewed as constructive desertion.

A divorce decree may be requested by the aggrieved party if either spouse is serving a term of at least 7 years or more for any offence committed under the Indian Penal Code, 1860.


In the Special Marriage Act of 1954, cruelty is not defined. Because definitions do not necessarily limit the extent of cruelty, it is possible to give cruelty a more expansive definition. Cruelty can be in any form or manner, be it mental or physical. If the husband or wife alleges that they have been treated cruelly and can legally demonstrate it, it is a solid reason to file for divorce.

It was decided in the case of J.L. Nanda v. Veena Nanda 1988 Supp SCC 112 that pregnancy termination does not constitute cruelty. Therefore, it cannot be a legal basis for filing for divorce.

Unsoundness of mind

The aggrieved party may file for divorce if either spouse in the marriage has a mental illness of a kind that makes it impossible for the other spouse to live with him or her or if it is not reasonably expected that the other spouse will continue to live with the mentally impaired spouse.

Venereal illness

All sexually transmitted diseases fall under the category of venereal diseases. Any venereal illness that either partner currently has or has had becomes a legitimate reason for divorce and entitles the other party to file for divorce.

In the case of X v. Hospital Z (AIR 1999 SC 495), the court held that if a spouse has a venereal disease—in this case, HIV—it signifies that he must have acquired the illness prior to being married and that he should be prohibited from getting married.


The Hon'ble Supreme Court of India invalidated the Leprosy as a ground of divorce in Pankaj Sinha v. Union of India (2018) 2 SCC 1502.

Presumption of Death

The petitioner has the right to file for divorce if the respondent hasn't been in contact with anyone for the past seven years, especially those who would have typically heard from him or her if he or she were still living. Here, it is the petitioner who has the burden of proof.

A wife may approach the district court to request a divorce under the following grounds, as per Section 27(1-A):

Rape, sodomy, or beastliness
If the husband is found guilty of sodomy, rape, or bestiality, the wife may file a petition in the district court for a divorce. When a human has sexual relations with an animal, it is known as bestiality. The Indian Penal Code, 1860's Section 377 defines sodomy and bestiality as crimes.

According to Bamption v. Bamption, (1959) 2 All ER 766, if a husband engages in sodomy on his wife and is found guilty under Section 377 of the Indian Penal Code, 1860, the wife may file for divorce.

According to the Hon'ble High Court of Punjab and Haryana, "acts of sodomy, forcible sexual intercourse, and adoption of unnatural means which are forced upon the other spouse resulting in unbearable pain to the extent that one is forced to stay away would certainly be a ground to seek separation or a decree of divorce" in Preeti Kumari vs. Neelkanth Kumar (2018) SCC P&H 757).


Even if the parties have been living apart and there has been no return to cohabitation for at least a year after the decree was issued in the wife's favour, she may file for divorce under sections 125 of the Code of Criminal Procedure from 1973 or 18 of the Hindu Adoption and Maintenance Act from 1956.

Either party may approach the Court to request a divorce under Section 27(2) of the Special Marriage Act, 1954. Following are the grounds:

Judicial Separation

It becomes a legitimate basis for filing for divorce if it has been one year or longer since the parties lived together after the decree of judicial separation was issued.

Restitution of Conjugal Rights
It becomes a legal basis for filing for divorce if it has been a year or longer since the parties lived together after the decree of restitution of conjugal rights was issued.

The procedures to be followed in the event of a divorce by mutual consent are outlined in Section 28 of the Special Marriage Act, 1954.

The following details the circumstances:

  1. When both parties have voluntarily agreed to end their marriage due to an inability to remain together and have been living separately for more than a year, they may jointly file a petition for divorce by mutual consent with the district court.
  2. The district court may grant a divorce by mutual consent after hearing both parties and conducting any necessary inquiries if the aforementioned petition is not withdrawn earlier than six months or later than eighteen months from the date of presentation of the said petition. It was decided in the case of Rachna Mittal v. Lt. Kuldeepak Mittal 1995 Supp (3) SCC 414 that neither party may consent to the dissolution of their marriage under any duress or malice.

The goal of the remedy of judicial separation and divorce is to guarantee that the parties who are unable to maintain their marriage for any of the aforementioned reasons recognised by this Act, may seek a relief of judicial separation or divorce as they see proper. The divorce simply ends the marriage and liberates the couple from all of the marital obligations and rights, however judicial separation as a remedy still leaves some possibility for the estranged couple to reunite and re-join one other's company.

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Written By: Ameesha Goel

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