This article is written by Saloni of 7thSemester of Bhagat Phool Singh Mahila Vishwavidyalaya from Department of Laws, an intern under Legal Vidhiya
ABSTRACT
In keeping with Indian culture, which views marriage as a sacramental bond that cannot be shattered, Indian courts have created an instrument known as judicial separation, which, while having a nature similar to that of a divorce, allows both parties to a troubled marriage some time for introspection in order to avoid dissolution by way of. The legal mechanism of judicial separation will be covered in detail in this article. Indian courts have developed an instrument known as judicial separation, which, while having a nature similar to that of a divorce, allows both parties to a troubled marriage some time for introspection in order to avoid dissolution by way of, in keeping with Indian culture, which views marriage as a sacramental bond that cannot be broken. In this paper, the judicial separation legal framework will be thoroughly discussed
Keywords: judicial separation, conjugal rights, marriage, provisions under different personal laws, divorce, grounds for judicial separation
INTRODUCTION
As we all know marriage is a universal phenomenon. Marriage is governed by different personal laws. In the same way divorce, succession, inheritance comes under the domain of personal laws. As we all want some break from our daily routine work in the same way the concept of judicial separation woks. After marriage, in most of the cases because of several reasons the couples does not want to live together and wants to get separated, by way of judicial separation or divorce. Judicial Separation is a divorce alternative in which the parties to a marriage are granted time to work out their differences and try to salvage their failing union by living separately. In case of divorce the legal status of marriage comes to end but in case judicial separation the status of legally married spouse remains after the judicial separation.
MEANING OF JUDICIAL SEPARATION
The official breakdown of the marriage is known as judicial separation. It is a phase that follows marriage but precedes divorce. Judicial separation is a concept of legally getting apart when a couple decides that they no longer want to cohabitate. However, marriage still subsists. There is room for settlement between parties.
Couples are given time during judicial separation to reflect on their dysfunctional marriage. Couples are required by law to live apart during a judicial separation and refrain from having any sex during that time. The alternative to judicial separation is time for the couple to work out their differences, problems, and problems in order to succeed in saving their marriage. Judicial separation is the couple’s only remaining option if they are unable to live together again and continue their marriage. A spouse’s marriage is not entirely dissolved receiving a judicial separation order against the other spouse.
As per the Collins Dictionary, a judicial separation means “a court decree requiring a married couple to cease cohabiting but not dissolving the marriage”.[1]
In the case of Krishna Bhattacharjee v. Sarathi Choudhary,[2] the court held that the spouse does not lose the right to inherit the other spouse’s assets because there has not actually been a breakdown in their marital relationship. In this case the supreme court of India held that status of the parties did not become different due to a decree of judicial separation. Further it held that there is a distinction between the decree for divorce and the decree of judicial separation.
JUDICIAL SEPARATION UNDER DIFFERENT PERSONAL LAWS
Various judicial separation provisions were incorporated in the following Acts:
- The Hindu Marriage Act of 1955 provides legal protection for Hindus who follow Buddhism, Sikhism, and Jainism.
- For Christians, in accordance with The Act of 1869,
- The Parsi Marriage Act of 1936 is applicable to Parsis.
- Everyone is subject to the Special Marriage Act of 1954.
Judicial Separation in Hindu marriage act, 1955
Judicial separation is defined in Section 10 of the HMA 1955[3] as “a court order requiring a married couple to cease cohabiting but not dissolving the marriage.” According to the Hindu Marriage Act, individuals who separate are free from marriage responsibilities including cohabitation. In India, courts frequently grant after judicial separation if parties cannot reconcile but still desire to do so.
GROUNDS OF JUDICIAL SEPARATION UNDER HINDU LAW
• Adultery: If the other party engaged in consensual sexual activity after marriage with someone other than their spouse.
• Cruelty: If the other party has been harsh to you after the marriage has been solemnized.
• Desertion: If the opposing party abandoned the petitioner for an ongoing period of at least two years prior to the petition’s presentation.
• Mental disorder: If the other party consistently suffers from any mental illness such that the petitioner cannot properly coexist with the respondent.
• Conversion: If the other party converted to another religion and ceased to be a Hindu.
• Leprosy of a severe and incurable nature: The spouse has been suffering from leprosy of a virulent and incurable nature.
• Contagious venereal disease – The spouse has a contagious form of venereal disease.
• Renunciation – The spouse has decided to renounce.
If the spouse has not been heard of as being alive for a period of seven (7) years or more by persons who would have normally heard that the person is living, there is a presumption that they have passed away.
Additional grounds provided to wife for judicial separation:
The following additional grounds for judicial separation apply to the wife under Section 13(2) of the HMA 1955:[4]
• Bigamy: Bigamy is the practice of a husband getting remarried when his first wife is still living.
• Husband guilty of rape/ sodomy/ bestiality: In addition to the complaint, the husband has been found guilty of the crimes of rape, sodomy, and bestiality.
• A one-year prohibition on cohabitation while receiving support under a decree or order.
• The refusal (rejection) of a marriage before the age of 18, even if it was solemnized before the age of 15,
Judicial separation under the divorce Act, 1869
A decree of judicial separation may be obtained by any party to a marriage under Section 22 of the Divorce Act, 1869, on the grounds of cruelty, adultery, or desertion for a term of two years or longer. A divorce Mensa et toro will be prohibited by such a decree, but judicial separation is still possible. Despite prohibiting cohabitation, a Mensa et toro divorce does not end the marriage. Either spouse of a marriage may file a petition with the district court for judicial separation in accordance with Section 23 of the Act. If the court determines that the allegations contained in the petition are factual and there are no valid reasons to deny the request for judicial separation, it may award the requested relief.
Judicial separation under the Parsi Marriage and divorce Act, 1936
A married person may seek for judicial separation on any grounds for which a divorce suit may be brought, according to Section 34 of the Parsi Marriage and Divorce Act, 1936.[5] The provisions of Section 35[6] specify the circumstances under which the court may decline to issue a decree of judicial separation or divorce.
Judicial separation under the Special Marriage Act, 1954
A husband or wife may apply for a decree of judicial separation against their spouse under the following circumstances, according to Section 23 of the Special Marriage Act of 1954:
- When either spouse abandons the other for a continuous period of two years;
- When either spouse is found guilty of a crime under the Indian Penal Code, 1860 and given a sentence of at least seven years in jail;
- Where the spouse is mentally incompetent or experiences persistent or recurrent mental illness;
- Where the spouse has leprosy;
- Where the spouse is harsh to the petitioner;
- Where the husband has committed the crime of rape, bestiality, or sodomy after the solemnization of marriage;
- Where the spouse has not been heard from for the preceding seven years;
- Where the spouse has a communicable venereal illness;
When the spouses to a marriage disobey a court order restoring conjugal rights, According to Section 23(1)(b) of the Special Marriage Act of 1954,[7] failing to abide by a ruling for the restoration of conjugal rights is a basis for judicial separation.
Judicial separation under Muslim law
A Muslim woman has a right to live separately on the following grounds:
- Impotency
- Cruelty
- Irregular Marriage
- Failure to perform obligations mentioned in marriage contract
- Husband has been out casted
- Arrangement of marriage by a guardian other than the father
EFFECT OF JUDICIAL SEPARATION
The immediate impact of the judicial separation is that cohabitation ceases. However, the parties’ marital status has not changed. They no longer live together but they are still husband and wife.
- Declaring the decree null and void
However, the decree may be revoked if they believe the disagreement has been resolved. The court may revoke the judicial separation decree. Any of the parties may apply for this. The court will also investigate the veracity of the statements. The court will revoke the judicial separation decree if it is fair and just.
- Spouse with children
In case if the spouse have children, then claiming judicial separation directly have a negative impact on the children. Also the custody of children becomes another issue.
- Maintenance to wife
The husband is anticipated to look after his wife. He’ll take care of her financial obligations and provide a comfortable lifestyle to her. But after a legal separation, is a husband also required to support his wife.
In Rohini Kumari v. Narendra Singh,[8] the Honorable Supreme Court ruled that if the aggrieved party does not wish to live with the deserting spouse (in this case, the husband), she may file a lawsuit for judicial separation. Additionally, it was decided in this case that the wife has the right to ask her husband for maintenance under both the Hindu Marriage Act and the Hindu Adoption and Maintenance Act of 1956 in the event of a judicial separation.
BENEFITS OF JUDICIAL SEPARATION
- Financial liberty: A legal separation may enable both partners to enjoy financial independence. Each of the spouse can take authority over his/her own finances and decide how they want to proceed financially by splitting up.
- Emotional Closure: Legal separation can give both parties the emotional closure those who have experienced toxic or violent relationships may find this to be extremely helpful.
- Legal Defense: A judicial separation may offer both parties legal defense. People who have been in a relationship where one person has been emotionally or financially abused may find this to be extremely helpful. It preserves the marriage while giving both parties legal protection, like as support, child custody, and property division.
- New Opportunities: A judicial separation may open up new possibilities for both parties. This can be especially beneficial for those who have been in a stagnant relationship.
- Time to Address Issues: The concept of judicial separation enables the married couple to live separately and giving time to work on their problems and to save their marriage by addressing various issues that have compel them to get separated.
- Health Advantages: Divorcing a partner who may be a source of stress or anxiety can be beneficial for health as it frees up time for people to focus on their physical and mental well-being.
- Probability of reconciliation: Without going through the formalities of divorce, it can provide couples the opportunity to fix things up and work on their union.
· Religious or Cultural Reasons: For couples whose religious or cultural beliefs forbid divorce, it gives them the option legally to cohabitate.
DISTINCTION BETWEEN DIVORCE AND JUDICIAL SEPERATION
Judicial separation is often confused with divorce. But both are different concepts. Judicial separation is an alternative to divorce where time is given to both the couple to resolve their issues and make an effort to save their marriage by living separately. Where as in the case of divorce there is complete dissolution of marriage. There are few of the key points on the basis of which we can differentiate both these concepts. These are:
| GROUNDS | JUDICIAL SEPARATION | DIVORCE |
| Definition | Suspension of conjugal rights or marital obligations for a specific period of time can be called as judicial separation. | is a process by which the marriage is formally comes to an end. |
| Defined Under section | Section 10 of Hindu marriage act, 1955 | Section 13 of Hindu marriage act, 1955. |
| Main Objective | Granting an opportunity for re-union in the marriage. | Dissolve the marriage. |
| Minimum time for filing an application | Can be filed at any time after the marriage. | Can be submitted after a year, with the rarest of circumstances constituting an exception. |
| Effect on Legal Status | Marital status remains maintained. | Dissolve the marital status. |
| Prohibited on Marriage | Both the parties are not allowed to marry during the process. | The parties may choose to get married if they so choose. |
| Right to Inheritance | Remain enforced | Ends with the granting of the ‘decree of divorce’. |
| Timeline | Under Section 10 of the Hindu Marriage Act of 1955, a request for judicial separation may be made at any point after marriage. | Only after at least a year of marriage has passed may an application for divorce in accordance with Section 13 of HMA 1955 be filed. |
| Nature | The HMA defines legal separation as a momentary or temporary suspension of marriage. | Divorce is the temporary or irrevocable dissolution of a marriage. |
| Maintenance | Status of the wife does not change and thus, the husband has to bear the expenses of maintenance in judicial separation. | A d wife retains the maintenance or alimony rights as per HMA 1955 or even under CrPC 1973 Section 125. |
| Effect on Marriage | Section 10 of Hindu Marriage Act, 1955 | Marriage comes to an end after divorce. As a result, after the appeal period has passed, husband and wife are allowed to get married to someone else. |
| Taking Back | Decree of judicial separation can be rescinded through application by either party if court is satisfied | Decree of divorce cannot be rescinded but can be appealed against |
In the case of Vinay Khurana v. Shweta Khurana (2022),[9] The Delhi High Court noted that despite the fact that both judicial separation and divorce are issued on comparable grounds, their conjugal reliefs are very different. The divorce allows the husband and wife from their marital link and allows them to remarry, whereas judicial separation does not intend to destroy the marital bond between husband and wife. As a result, the court invalidated the Family Court’s earlier ruling, which had awarded a decree of judicial separation rather than a divorce.
LANDMARK JUDGMENTS ON JUDICIAL SEPARATION
In the case of Mozelle Robin Solomon v. Lt. Col. R.J. Solomon (1968)[10], According to the Bombay High Court, the divorce decision has the effect of ending the marriage and the marital bond, creating an absolute separation between the parties both in fact and in law. However, a decision for judicial separation is just for legal separation and does not, in and of itself, dissolve the marriage ties; it is only for legal separation.
Naveen Kohli v. Neelu Kohli (2006),[11] In terms of this separation and cruelty, this case is a major decision by the Indian Supreme Court. The court ruled that even though there is no legal basis for divorce, a court can still allow a separation if one side can prove that the other has treated them cruelly.
Hitesh Bhatnagar v. Deepa Bhatnagar 2011[12] In this case, the Supreme Court of India ruled that even if a desertion does not meet the requirements for a ground for divorce, a court can still grant judicial separation on the grounds of desertion if the party seeking the separation can demonstrate that the other party has abandoned the former.
CONCLUSION
Hence, we can conclude that judicial separation is a legal concept which is an alternative to divorce, having similar grounds to that of the concept of divorce. It is a concept through which both the parties to marriage are given time to resolve their issues and to save their marital relationship. Judicial separation is often confused with divorce but both these concepts are separate concepts. In simple language in divorce the marriage is dissolved completely but whereas in judicial there is no permanently dissolution of marital relationship.
[1] https://www.collinsdictionary.com/dictionary/english/separation/related
[2] (Krishna Bhattacharjee v. Sarathi Choudhary, 2016)https://www.lawyersclubindia.com/articles/5-important-judgments-on-aggrieved-persons-under-section-2-a-of-the-dv-act-14869.asp
[3]https://www.advocatekhoj.com/library/lawreports/hindumarriageact1955special/7.php?Title=Hindu%20Marriage%20Act,%201955%20and%20Special%20Marriage%20Act,%201954&STitle=Section%2010#:~:text=Under%20section%2010(1)%20of,the%20specified%20types%20of%20disease.
[4] https://indiankanoon.org/doc/493667/
[5] https://indiankanoon.org/doc/1743359/
[6] https://indiankanoon.org/doc/1170550/
[7]https://indiankanoon.org/doc/1998254/#:~:text=(b)%20on%20the%20ground%20of,may%20decree%20judicial%20separation%20accordingly.
[8] (Rohini Kumari vs Narendra Singh , 1971) https://indiankanoon.org/doc/1056553/#:~:text=In%201955%2C%20prior%20to%20the,trial%20court%20allowed%20the%20petition.
[9] (Shweta Khurana vs Vinay Khurana , 2022) https://www.livelaw.in/pdf_upload/jsm18022022matfc2132018102952-410176.pdf
[10] (Mozelle Robin Solomon vs Lt. Col. R.J. Solomon, 1968) https://indiankanoon.org/doc/1776769/
[11] (Naveen Kohli vs Neelu Kohli, 2006) https://indiankanoon.org/doc/1643829/
[12] (Hitesh Bhatnagar vs Deepa Bhatnagar, 2011), https://www.aapkaconsultant.com/blog/withdrawal-of-mutual-consent-for-divorce-by-one-of-the-spouses/
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