Judicial Separation And Divorce
Matrimonial disputes take place due to misunderstanding or indifferent behavior
between husband and the wife. So in such cases to provide relief to the
aggrieved parties, certain matrimonial remedies take place in The Hindu Marriage
As per the act such matrimonial remedies are:
- Restitution of conjugal rights (Sec. 9)
- Judicial separation (Sec. 10)
- Void and Voidable Marriages (Sec. 11 & 12)
- Divorce (Sec. 13)
- Divorce by mutual Consent (Sec. 13B)
Judicial separation is a legal process which refers to a legal break up of
marriage before divorce. In simple terms, judicial separation refers to the
situation when the parties by each otherís consent get separated for a specific
period of time. Judicial separation is the situation where both husband and the
wife get the chance to give an another opportunity to their marriage before
In this both the parties will live separate for a specific period of time given
by court to save their marriage. And during this phase also both the husband and
wife will continue the legal status of being in a relationship and yet at the
same time live separately.
The main objective behind judicial separation is to give another chance to the
parties to reconcile their differences which is occurred for indifferent
behavior of other party.
As per section 10 of the Hindu Marriage Act, 1955 Judicial separation defines
- Either party to a marriage, whether solemnized before or after the
commencement of this Act, may present a petition praying for a decree for
judicial separation on any of the grounds specified in sub-section (1) of
Section 13, and in the case of a wife also on any of the grounds might have
- Where a decree for judicial separation has been passed, it shall no
longer be obligatory for the petitioner to cohabit with the respondent, but
the court may, on the application by petition of either party and on being
satisfied of the truth of the statement made in such petition, rescind the
decree if it considers it just and reasonable to do so.
1. A is married to B. They had an argument over a pizza and that
argument became so big that they donít want to be together anymore. They further
move to court for divorce and then the court decided to give them a specific
period of time to settle their relationship and ordered judicial separation for
1 year. After 1 year, they sorted things between them and decided not to have
And when after 1 year, the couple decided not to continue with matrimonial
obligations then the court will decide the ground for divorce and the process of
divorce (whether it is of divorce by mutual consent or simple divorce).
Tapan Kumar Chakraborty v. Smt. Jyotsana Chakroborty
on 9 July 1996:
- The facts of the case are that the husband was being tortured by his
wife to live away with his family he was not comfortable to live separately
with his family.
- On 20th May, the wife left her matrimonial home secretly and went to
Police station with her brother to lodge a FIR against her husband and his
parents. And then the husband had to surrender and apply for bail and
granted bail immediately.
- The husband then decided to dissolve the marriage and filed a case of
- The suit was further contested by wife by filing a written statement.
She denied all the allegations made by her husband and also stated in her
written statement that she was being tortured by his husband and
mother-in-law and husbandís sister.
- It was held by the court that false allegation against the character of
any spouse made by the other spouse constitutes mental cruelty and that such
mental cruelly will be a valid ground for passing a decree of divorce under
Section 13(1)(ii) of the Hindu Marriage Act. The court further observed that
the allegations which was made by the wife-was baseless because it was
evident that the husband is not having any love-affair or any other
connection with another women.
Before 1955, there was no provision for judicial separation or divorce. Reforms
introduced in India and as well as in the Hindu Law and legislation and
amendments is a welcome step by the government. The two relieves granted by the
Hindu Marriage Act,1955 have proven to be effective in resolving disputes
between parties by giving them an opportunity to reconcile their difference or
by releasing them from marital ties or matrimonial obligations.
Can Divorce be a judicial separation?
No, divorce cannot be judicial separation while judicial separation may convert
We will understand this by above illustration, as in above illustration the
couple sorted their problem and decided not to have divorce. But in some
situations/cases, judicial separation may converted into divorce, like there was
one case law where the couple was first ordered for judicial separation so that
they will get to know the importance of each other in their life, but even after
1 year the couple decided to stay away and want to remove the matrimonial
Thus, this proofs that judicial separation can become divorce but a divorce an
not become judicial separation because divorce mean dissolution of marriage
while judicial separation refers to release from matrimonial obligations for a
certain period of time.
And if in a case the party wants to resume cohabitation, it is necessary for
them to get the order of judicial separation annulled/dismissed.
Grounds for Judicial Separation:
- Cruelty: It includes both mental and physical cruelty. Mental cruelty is
lack of such conjugal kindness, which inflicts pain of such degree and
duration that it adversely affects the health, mental or bodily, of the
spouse or whom it is inflicted.
Some instances of cruelty are as follows
- False accusations of adultery
- Refusal to have martial intercourse
- Birth of illegitimate child
- Threat to commit suicide
- Wifeís writing false complaints to employer of the husband
- Incompatibility of temperament
- Irretrievable breakdown of marriage
There must be voluntary or consensual sexual intercourse between a
married person and another, whether married or unmarried, of the opposite sex,
not being the otherís spouse, during the subsistence of marriage.
Offences of adultery may be proven by:
- Circumstantial evidence
- Contracting venereal disease
It means withdrawing from the matrimonial obligations, i.e., not
permitting or allowing and facilitating the cohabitation between the parties.
When the other party has ceased to be Hindu by conversion to
Insanity as a ground of judicial separation has he following
- The respondent has been incurably of unsound mind.
- The respondent has been suffering continuously from mental disorder of
such a kind and to such an extent that the petitioner cannot reasonably be
expected to live with the respondent.
Contagiousness of leprosy and replusive outward manifestation are
responsible for creating a psychology where man not shuns the company of lepers
but looks at them scornfully. Thus, it is provided as a ground for judicial
separation as well as for divorce.
At present, it is a ground for divorce if it is
communicable by nature irrespective of the period for which the respondent has
suffered from it.
Renunciation:Renunciation of the world
is a ground for divorce and
judicial separation only under Hindu law, as renunciation of the world is a
typical Hindu Notion. A person who does this is considered as civil death. Such
renunciation by entering into a religious order must be unequivocal and
Presumption of Death:
A person is presumed to be dead, if he/she has not
heard of being alive for a period of at least 7 years.
Now, the question arises whether a wife be claimed during the period of judicial
Sohan lal v Kamlesh
In this case, the petitioner filed a suit against his wife under Section 9 of
The Hindu Marriage Act, 1955 i.e., Restitution of conjugal rights. And the
respondent filed an application for the grant of maintenance and litigation
expenses. Later, before the pronouncement the husband decided to withdrawn the
suit but it was dismissed as withdrawn.
It was held by court that husband have to grant maintenance to the wife and the
children because the wife at that time was not earning anything. So on the
application of wife, the court ordered to provide her Rs. 50 pm as a maintenance
but she came up with a revision as she said that the amount was too less for her
and for the children so the court again ordered for Rs. 75 pm.
Thus, the answer is yes, the wife will get maintenance during the of judicial
separation also if she is not able to maintain herself.
Procedure to file a suit for judicial separation or divorce:According to order VII and rule 1 of CPC, these are the essentials of a petition
for judicial separation and divorce:
- Place and date of marriage
- Affidavit of both the parties of being Hindu
- Name, status and resident of both husband and wife
- Evidence of the ground for judicial separation or divorce, for ex- in
case of adultery, one must have pictures of proof that he/she is having any
extra martial affair.
Difference between judicial separation and divorce
- Judicial separation can be filed at any time after the marriage but in
case of divorce, it can only be filed after completion of 1 year of
- Judicial separation give release from matrimonial duties and obligations
for a certain period of time while divorce dissolve the marriage
- Judicial separation is a first step process while divorce is a two step
- In judicial separation, if the ground for it are satisfied by the court
then it is granted but in case of divorce the reconcile the marriage first
and then ordered for divorce.
- Judicial separation can also be the ground for divorce.
- Under judicial separation the parties can think about their marriage and
reconcile it but under divorce, one can not reconcile their marriage.
- Judicial separation is defined under section 10 of the HMA, 1955 and
divorce is mentioned under section 13 of the act.
Judicial separation is a legal break up by court which later may convert
into a patch up. In simple words, judicial separation refers to release from
matrimonial duties or obligation for certain period of time. The objective of
court to give judicial separation to the aggrieved party is to think about their
relationship and give it another chance before divorce. Judicial separation can
be divorce but divorce can never be judicial separation and judicial separation
is a ground for divorce.
And it is not necessary for the aggrieved parties to live separately. They can
live under same roof. Judicial separation is release from duties not from the
So, before 1955, there wasnít any concept of separation or divorce because it is
considered in Hindu rituals that marriages are not meant to be dissolve. While
later, because of civilization and reforms the concept of divorce is introduced
in India as well as in the Hindu Marriage Act, 1955.