DIFFERENCE BETWEEN JUDICIAL SEPARATION AND DIVORCE

INTRODUCTION

'Divorce cannot be judicial separation while judicial separation may convert into divorce'.[1]

To understand the essence of the saying above we will take the help of the provisions of the Hindu Marriage Act (HMA), and in doing so, we will strive to find the differences between two very popular remedies available to provide relief to matrimonial disputes in India.

1. JUDICIAL SEPARATION

A judicial separation decree, while does not dissolve the marriage in itself, it does lead to the suspension of certain mutual rights and obligations of the parties to the marriage concerned.

More specifically, as Section 10(2) of the HMA states, after the passing of the decree, it will no longer be obligatory for the petitioner to cohabit with the respondent, in other words, the latter cannot enforce their conjugal rights upon the petitioner.

1.1 Grounds

The grounds on which a petition for judicial separation can be presented can be observed in Section 10(1) of the HMA which states as such,

10. Judicial separation.1[(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 specified in sub-section (2) thereof, as grounds on which a petition for divorce might have been presented.][2]

Now keeping in mind Section 13(1) (2), the above extract of Section 10(1) holds that a petition of judicial separation can be presented either by the wife or the husband on the ground that the other part,

• has had sexual intercourse with any other person than their spouse, has treated the petitioner with cruel
• has deserted the petitioner (provided that it is without the petitioners consent and petitioners own actions didn't influence such desertion on the part of the respondent
• ceased to be a Hindu by conversion to another religion
• is of unsound mind
• is suffering from venereal disease in a communicable form
• has renounced the world by entering any religious order
• has not been heard of as being alive for a period of seven years

Additionally, it mentions that, in the case of a wife initiating the decree, she can present a petition on the ground that her husband

• has performed bigamy
• has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality
• or, she has repudiated her marriage before turning 18 years of age, where the marriage was solemnized before attaining 15 years of age

1.2 Marital bond in a Judicial Separation

Contrary to divorce, a judicial separation does not mean breaking of the marital bond; the legality of the marriage persists, only it leads to the suspension of certain rights and obligations that usually follow suit in such marital relationship. Further, it is to be noted that the passing of such a decree also does not automatically mean that the marital dispute would end with a divorce. The judicial separation instead provides an opportunity for reconciliation and adjustment between the parties before making the ultimate decision to end the marriage.

1.3 Purpose and Considerations

A judicial separation therefore, serves a unique purpose in the legal landscape, it offers individuals to a marriage, an alternative means of addressing contentious issues without fully terminating the legal relationship. Courts hence usually consider, before granting the prayer to permanently snap the relationship between the parties, that every attempt is made to maintain the sanctity of the marriage; this is such because it is of importance not only for the individuals themselves and the children of such marriage but also for the society at large.[3]

2. DIVORCE

2.1 Grounds

The Hindu Marriage Act provides under Section 13B a provision for divorce by mutual consent, it states that a divorce petition can be presented on the ground that the couple has been living separately for a period of one year or more, that they havent been able to live together and that they have mutually agreed that the marriage should be dissolved.

If such is not possible, the act provides that all grounds for presenting a petition for judicial separation apply when attainting a divorce too, we observe as such when reading Section 13 and Section 10(2) together. Only difference is that the Act provides two additional instances whereby parties can seek divorce as well,[4]

• as Section 13(1A)-(i) provides, where there has been no resumption of cohabitation after one year of judicial separation
• as Section 13(1A)-(ii) provides, where there has been no restitution of conjugal rights after one year of passing such decree under Section 9 of the HMA

2.2 Marital bond in Divorce

Divorce, unlike judicial separation represents a more definitive conclusion to the marital union. It leads to the official termination of the marital bond, allowing the individuals to the marriage to move forward independently. Since this means breaking up of the legal ties between the parties, as Section 15 of the HMA provides, the now freed individuals can legally be allowed to marry again.

3. THE ISSUE OF MAINTAINANCE TO THE WIFE BY THE HUSBAND

In the case of a judicial separation, since the marital bond remains intact, the wife is entitled to seek maintenance from the husband. In the case of divorce however, wife can claim maintainance provided she is has not remairried and that since the grant of divorce, she has been unable to maintain herself.

4. WHEN CAN ONE APPLY A PETITION FOR IT?

An application for judicial separation may be filed any time after the solemnization of the marriage. This is unlike in the case of divorce where parties seeking relief must wait for expiry for one year after marriage to present a petition for it.

5. THE LEGAL PROCESS

Judicial separation is a one step process while divorce, at times, can be considered a two step process.[5] We say this in the context of Section 13A of the HMA which states that when a petition is presented for the grant of a divorce, provided that it is not presented on the ground under Section 13(1)-(ii), (vi) and (vii), the court may after consideration grant a decree for judicial separation instead. As such, it is only after there is no resumption of cohibitation following one year of the judicial separration that the parties to it can present a petition for divorce.

This is unlike the decree of judicial separation where it is granted provided the parties can prove the grounds it was claimed under.

CONCLUSION

To conclude this article let us go back to the statement we started with:

'Divorce cannot be judicial separation while judicial separation may convert into divorce'[6]

This saying helps encapsulates the dynamic nature of these two different but otherwise intertwining remedies. Serving as a predecessor, judicial separation provides a brief reprieve along with chances for reconciliation. In the event that attempts at reconciliation are unsuccessful, it creates the conditions for divorce.

The legal landscape can hence be said to understand and recognize the evolving nature of marriage and marital issues. By offreing individual with options, strives to maintain a balance between the sancity of marriage and the need for resolution.

REFERENCES

1. Difference Between Judicial Seperation And Divorce, India, available at: https://www.legalserviceindia.com/legal/article-3377-difference-between-judicial-separation-and-divorce.html (last visited on December 4, 2023).

2. The Hindu Marriage Act, 1955 (Act 25 of 1955), s. 10.

3. The Hindu Marriage Act, 1955 (Act 25 of 1955).

4. Judicial Separation and Divorce under Hindu Law, India,available at:https://www.vidhikarya.com/legal-blog/judicial-separation-and-divorce-under-hindu-law (last visited on December 5, 2023)

5. Judicial Separation and Divorce under Hindu Law, India,available at:https://www.vidhikarya.com/legal-blog/judicial-separation-and-divorce-under-hindu-law (last visited on December 5, 2023)

6. Difference Between Judicial Seperation And Divorce, India, available at: https://www.legalserviceindia.com/legal/article-3377-difference-between-judicial-separation-and-divorce.html (last visited on December 4, 2023).