JUDICIAL SEPERATION IN INDIA : BOON OR BANE?

1. INTRODUCTION

Judicial Seperation is a legal decree passed by the court to a husband and wife to not live together in their matrimonial home .The spouse can live separately from each other. Their matrimonial obligations and conjugal rights get suspended by law on their request or application . The judicial seperation is also termed as divorce mensa et thoro, i.e .separation from bed and board. It is generally granted for a period of one year The Judicial separation is considered to be limited form of divorce as it provide time to the spouse to retrospective and work on their marriage rather than breaking the sacred marriage ties forever. Judicial Seperation is found in all personal law in India.

2. JUDICIAL SEPERATION UNDER HINDU LAW

Marriage is considered to be a scarcement of two soul as they tie themselves to each other for life but due to some inevitable and unforseenable reason , spouse opt for divorce but judicial seperation provides as an alternative to it and also act as a helear of broken relations. Section 10 of the Hindu Marriage Act,1955 provides the relief of judicial seperation on various ground under Section 13 subsection 1 and subsection 2 of the respective Act such as :

• Adultery
• Cruelty
• Desertion
• Conversion
• Unsoundness of mind of spouse
• Bigamy
• Venereal Diseases,leprosy, mental disorder or illness etc
• Husband or wife not heard for Seven years or more
• If a spouse has renounce worldly pleasure
• Husband guilty of rape, sodamy or bestiality[1]

3. JUDICIAL SEPERATION UNDER MUSLIM LAW

There is no such concept of judicial seperation in Muslim law but there are various judgement to support judicial seperation in certain circumstances.Under Muslim law, major right is given to the wife for availing judicial seperation than husband. Section 2 of the Dissolution of Muslim Marriage Act,1939.

This are the following ground such as :

• Husband is missing or have no trace since four years or more
• Husband fails to provide maintenance to his wife for two years
• Husband is imprisoned for an offence with punishment of seven year or more
• Cruelty by Husband includes physical and mental torture
• Impotency of Husband
• Mental illness of the spouse
• Repudiation of marriage by wife is the marriage was solemnity before attaining the age of fifteen in such cases wife can avail judicial seperation till eighteen years of age
• Husband has failed to fulfil martial obligations such as taking care of his physical, mental and emotional needs of his children or wife or both. [2]

4. JUDICIAL SEPERATION UNDER CHRISTIAN LAW

Under Sections 22 and 23 of the Divorce Act, 1869, Christian husbands and wives have the option to obtain a judicial separation decree on grounds such as adultery, cruelty, or desertion lasting over two years.This decree can be reversed under Section 26 of the Divorce Act, 1869 upon the request of the spouse of the party who initially sought the judicial separation decree. The request can be based on ground that the spouse was absent when the decree of judicial seperation was passed by the court and there is valid reason for desertion by the spouse .If the court deems this satisfactory, it can issue a decree to reverse the separation.

5. JUDICIAL SEPERATION UNDER PARSI LAW

Section 34 of the Parsi Marriage and Divorce Act,1936. provide for judicial seperation on ground of adultery,desertion,mental disorder,Impotency, cruelty etc.This provision provides for separation from spouse but maintain their martial status.

6. JUDICIAL SEPERATION UNDER SPECIAL MARRIAGE ACT, 1954

The Act provides for solemnizing interreligion marriages in IIndia.Section 23 of the Special Marriage Act,1954 also has same ground for judicial seperation similar to Hindu Marriage Act,1955.

7. JUDICIAL SEPERATION IS LEGAL DESERTION?

In judicial seperation, formal seperation is awarded to the spouses without changing their martial status i.e. they remain married in the eye of law but in desertion, a spouse abandon the partner intentionally without any intimation of returning which is not approved by the law of land . Therefore judicial sepration is not a form of legal desertion in any way.

8. CONSEQUENCES OF JUDICIAL SEPERATION

• Spouses no longer cohabit with each other but are considered to be married
• Spouses are prohibited from remarriage and sexual activity with other person
• If the husband remarry during judicial seperation he will be penalized by law for his act.
• Spouse will be entitled to property of his partner if he/she dies during the period of judicial seperation
• Child custody is also decided by the court keeping the best interest of the child.
• Judicial seperation is for one year after which the married couple can decide to reconcile or obtain a divorce.
• If a spouse is unable to maintain themselves, the court can order the other partner to maintain him/her during the period of judicial seperation .

9. JUDICIAL SEPERATION VS DIVORCE

• The objective of judicial seperation is retrospective and reuniting the martial bond whereas in divorce, the spouse become independent and their martial tie comes to an end.
• Petition for judicial seperation can be applied at any time after marriage but in divorce, a petition for divorce can he filed only after one year of marriage.
• There is more possibility of reconciliation in judicial seperation than in divorce
• Rights of the parties are temporarily suspended in judicial seperation but in divorce such rights comes to an end
• In judicial seperation, the spouse can not remarry but in divorce , a person can remarry after appeal has been passed by the court.
• The husband can be penalized for remarrying in judicial seperation but not in case of divorce
• In judicial seperation, the spouse will be entitled to their partners property in case of death of the spouse but such rights are not available in divorce except maintenance.

10. CASE LAWS

10.1 G.V.N. Kaeswara Rao VS R. G. Jalli [3]

The Supreme Court attempted to define cruelty within the context of marriage.The Court stated that an act is considered cruel if its intent is to cause suffering to the other spouse. It doesnt necessarily have to create fear in the spouse that its dangerous to live with the other.

10.2 Ms. Jordan Diengdeh VS S.S. Chopra [4]

The honourable judges enumerated various grounds under which a Muslim wife can also obtain a decree for the dissolution of marriage. This case also stressed the need for uniform laws with regard to the nullity of marriage, divorce, and judicial separation, which will apply to all people irrespective of their religion

10.3 Krishna Bhattacharjee VS Sarathi Choudhary [5]

The Supreme Court allowed the right of stridhan to the wife after an agreement of separation. The Court held it as the exclusive property of the wife and can not be curtailed under the judicial separation as it allow formal seperation but not breaking of marriage

10.4 Mozelle Robin Solomon VS Ltd. Col.R.J. Solmon [6]

The Court pointed out the difference between judicial seperation and divorce by stating that divorce liberates the person from marriage whereas judicial seperation is not irrevitable breakdown of marriage but ensures retrospection and reconciliation in a marriage.

11. CONCLUSION

Judicial Separation is an effective tool in retrospection and reconciliation to prevent the irrevitable breakdown of a marriage. It has more positive outlook than divorce which end the marriage for once and all. Judicial Seperation also protects from abusive spouse since it takes one year for filing divorce.It also provide legal protection against remarriage. It also helps in division and entitlement to assets of the spouse which is not available in divorce. There is limited freedom in personal life such as entering into a new relationship, there is no certainty about future of relation, it provides financial and emotional strain as the assets get divided between the spouse . It somewhere delays divorce and keeps a person struck in an unwanted marriage.

"JUDICIAL SEPERATION HELPS IN EVADING AS WELL AS AIDING DIVORCE ! "

12. CITATIONS

1. NAYANA P S , " Judicial Separation under Hindu Law " available at https://www.legalserviceindia.com/legal/article-5614-judicial-separation-under-hindu-law.html (last visited on January 3 , 2024)

2. TANISHKA DHINGRA , " Judicial Separation" available at https://legalvidhiya.com/judicial-separation/ (last visited on January 3, 2024)

3. (2002) 2 SCC 296

4. 1985 AIR 935, 1985 SCR Supl. (1) 704

5. (2016) 2 SCC 705

6. (1979) 81 BOMLR 578