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Difference Between Judicial Separation And Divorce

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 Act, 1955.

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 divorce proceedings.

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 as:

  1. 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 been presented.
  2. 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.

Illustration: 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 divorce.

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 divorce.
  • 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.

Historical background:
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 into divorce.

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 obligations.

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

  1. False accusations of adultery
  2. Refusal to have martial intercourse
  3. Impotency
  4. Birth of illegitimate child
  5. Drunk
  6. Threat to commit suicide
  7. Wifeís writing false complaints to employer of the husband
  8. Incompatibility of temperament
  9. Irretrievable breakdown of marriage

Adultery:

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:
  1. Circumstantial evidence
  2. Contracting venereal disease

Desertion:

It means withdrawing from the matrimonial obligations, i.e., not permitting or allowing and facilitating the cohabitation between the parties.

Conversion:

When the other party has ceased to be Hindu by conversion to any religion.

Insanity:

Insanity as a ground of judicial separation has he following two requirements-
  1. The respondent has been incurably of unsound mind.
  2. 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.

Leprosy:

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.

Venereal Disease:

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 absolute.

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 separation?

Sohan lal v Kamlesh
Facts:
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.

Held:
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 marriage.
  • Judicial separation give release from matrimonial duties and obligations for a certain period of time while divorce dissolve the marriage permanently.
  • Judicial separation is a first step process while divorce is a two step process.
  • 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.

Conclusion:
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 house.

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.

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