Answer to all What’s and How’s of Judicial separation

Lawyers Updated on Jun 28, 2023

divorce law

Understanding, love, faith, respect, and passion are the essentials of a happily married life. The marriage which lacks in any of them often becomes a misery and intolerable. Both the spouses should have equal empathy, interest, and compassion for each other else it becomes a burden on life. Any sort of misunderstanding, mistrust or differences can lead marriage to its end. But as per India law, every marriage needs a chance because sometimes divorce filing takes place due to the heat of the moment. To save a couple from the lifelong regret Indian law provides a providence of Judicial Separation, which is basically a section (section 10) under the Hindu marriage law act.

Let’s Understand the Related Aspects of Judicial Separation

What Judicial Separation Means?

Judicial separation is basically Section 10 of Hindu marriage law, wherein the couple gets a chance to introspect their decision of divorce by living separately and reconsidering their behavior. Both spouses live separately for a certain period of time so that they can get a time and space to rethink the strength and weaknesses of their bond. In this period they can discuss and make their mind whether the marriage deserves one chance or not. But during the period of Judicial separation, they both remain husband and wife legally.

What Can Be the Grounds for Judicial Separation?

The below given are the grounds for the judicial separation:

• Cruelty – If one spouse is treating other with cruelty.
• Desertion – Either of the spouses is not alive and is missing for seven years and above.
• Adultery –If one spouse is cheating the other. If the husband or wife is having an extra-marital affair, then the judicial separation can be sought.
• Forced conversion of religion –When one spouse forces his/her religions AND belief on the other or ask to convert the religion forcefully.
• Incurable diseases namely leprosy, cancer, Ebola, etc… Insanity, abnormality or unsound mind of the one spouse can be the ground for judicial separation.
• Venereal or sexual diseases –Sexual diseases such as HIV, AIDS, Syphilis, Genital Herpes, etc. can prompt the spouse to file for Judicial separation.
• Rape, Sexual Harassment, Molestation, Bestiality, and Sodomy can be the cause for Judicial separation.
• If the other spouse has abandoned the world on religious or spiritual grounds.
• When any of the spouses is below 18 years at the time of marriage

The Effect of Judicial Separation

The Judicial separation doesn’t enforce the cohabitation after the period of separation. If any of the spouses feel the need for divorce can file the petition of divorce.

Maintenance

The Hindu Marriage Act doesn’t specify the period of Judicial separation and it varies from case to case. But if the separation lasts for one year or more and the parties are still not ready to cohabit, the parties can file the divorce-decree on this ground itself. There is no provision of giving maintenance of the husband to the wife if the decree is filed by the husband.

AIR 1981 Punj 305; 1981 Hindu LR 345:

As per this law even if the decree is filed by the husband, maintenance still be provided to the wife.

What Is the Difference Between Judicial Separation and Divorce?

Judicial separation and divorce are two different terms of the Indian law. Divorce can be defined as the end of marriage whereas Judicial separation doesn’t terminate the marriage and both parties remain husband and wife legally.

There is no specific time period is required to waited by the couple to file Judicial separation after marriage, on the other hand divorce can be filed only after the completion of one year. Also, the judicial separation is a one stage process but divorce goes two stages of judgment.