JUDICAL SEPERATION

INTRODUCTION

According to the legendary anthropologist Robert Lowie, “Marriage is a comparably constant bond between legal mates.” Marriage is an entire organization generated to organize the lives of human beings. It grants permission to have different suggestions for indifferent breedings, but it is ubiquitous in institutions. In the Hindu friendly heritage, a wedding is deliberate a rite. It is deliberate a conscientious duty of one, and the matrimonial bond is pronounced expected integral and unchangeable. But with the arrival momentary, this idea has transformed, and immediately it is not any more treated as indivisible. Under Indian married standards, marital relations maybe incite an end by an agreement of legal break-up or through a divorce.

A judicial separation is a form provided to married couples, the one who is not quite ending their wedding entirely but only going to delay a few rights and responsibilities in marriage since divorce ends the wedding completely. A concurrence of judicial separation determines an alternative to divorce.

This item will check the concept of legal separation and the grounds under that the decree of legal separation may be requested. It again analyses allure correspondences and differences accompanying divorce.

What is judicial separation? 

A judicial separation is a permissible decree passed by a court to order a pair of things to live alone or complete their marital relations outside, really disintegrating their merger. It is frequently called “divorce mensa et thoro”, namely, break-up from ‘daily food’. Later the order of judicial break-up, the pair of things are not bound to live together or conjugate and all the fundamental matrimonial responsibilities between them are postponed. They are solely or freed from it each one, of one mind, so that they can catch an occasion to introspect their married connections. The agreement of legal break-up usually results in either divorce or conciliation between a pair of things. Therefore, this ending of break-up acts as an occasion to review their marriage, and if they are not satisfied accompanying their wedding, they can set it to an end with the concurrence of divorce.

As the bodies to a break-up compromise wait for the husband and wife, they are not free to remarry. And if they remarry, they may be grasped open for the offence of plural marriage. If one of the spouses expires all the while the livelihood of the break-up arrangement, the other man will acquire welcome/her possessions. Another condition for a valid legal break-up was that a merger be still valid between the bodies. The concurrence of separation can’t take place in void marriages, but the case grants permission to be various if the merger is voidable.

The various provisions for judicial separation were provided in the following Acts:

1.   The Hindu Marriage Act,1955: for Hindus including people from Buddhism, Sikhism, and Jainism, 

2.   The Divorce Act 1869: for Christians,

3.   The Parsi Marriage and Divorce Act 1936: for Parsi people, 

4.   The Special Marriage Act, 1954: applies to all people.   

Judicial separation under different personal laws

Hindu Law

In the Hindu religion, the merger is thought-out a holy sacrament namely strong and endless in character. It is deliberate not only for this life but again for many future lives. By the old lawgiver, Manu, marriage cannot be dissolved. But on account of the rise of new questions about the up-to-date existence of an individual, differing changes took place in Hindu standard. Immediately, marriages are no any more deliberate or permanent in nature. Differing relaxation measures are given to the individuals in a marriage, in case of some disputes or different reasons, to separate the wedding through a divorce or back judicial separation.

Section 10 of the Hindu Marriage Act, 1955 provides for the matrimonial relief of ‘judicial separation’ and the same position was also provided under Section 23 of the Special Marriage Act, 1954. The grounds under which the decree of judicial separation can be demanded by either husband or wife are the same as provided for agreement of divorce in both the legislations. 

The various grounds for judicial separation were provided under Section 13 sub-section (1) and (2) of the Hindu Marriage Act, 1955, and under Section 27 sub-section (1) and (2) of the Special Marriage Act, 1954. Under the grounds specified in sub-section (1), either party can present a petition for judicial separation; and under the grounds specified in sub-section (2), only the wife can present the petition for judicial separation. Some of these grounds are as follows:

·        Adultery,

·        Cruelty,

·        Desertion,

·        Conversion,

·        Unsoundness of mind or mental disorder,

·        Venereal disease,

·        Renunciation,

·        Not heard for 7 years,

·        Bigamy,

·        Husband guilty of rape, sodomy or bestiality.

Parsi Law

In the Parsi doctrine, marriage is thought-out as a contract and is solemnised through a ritual named ‘Ashirvad’, at which point the friar gives boons to the married couples in the appearance of two Parsi witnesses.

Under the Parsi Marriage and Divorce Act 1936, the provisions for nullity of the marriage, divorce, and judicial separation were provided as a relief measure for married couples. Section 34 provides for ‘suits for judicial separation’ which can be filed by any Parsi husband or wife on the various grounds mentioned in the Act for divorce under Section 32. These grounds are similar to those mentioned under the Special Marriage Act, 1954, and the Hindu Marriage Act, 1955.

Christian Law

Christian marriages are solemnised by the Christian rites, ceremonies, and duties in the closeness of the Minister of Religion, the minister of the pope’s jurisdiction, or some other person who has faith in something. These marriages too happen in contract form.

The various provisions related to marriage and other personal laws of the Christian community were provided under the Indian Christian Marriage Act, 1872, but the provisions regarding divorce and dissolution of marriage were provided under the Divorce Act, 1869. Section 22 and Section 23 of the Divorce Act, 1869 allow the Christian husband or wife to obtain a decree of judicial separation on the grounds of adultery, cruelty or desertion for more than 2 years. This decree will be the same as a divorce a mensa et toro, that is, a divorce that separates the husband and wife and forbids them to live together but does not dissolve the marriage.   

This decree can be reversed under Section 26 of the Divorce Act upon the petition of the spouse of the party on whose petition the decree of judicial separation was granted. It can be prayed on the ground of his/her absence during the petition for judicial separation, and if the court finds it satisfactory, it can pass a decree for its reversal. 

Muslim Law

There is no concept of relief from judicial separation in Muslim law. In the case of Rahmat Ullah and Khatoon Nisa v. the State of U.P. (1994), it was observed that “Muslim Personal Law or Shariat Law, although recognise the concept of talaq, that is, divorce, but doesn’t know or does not conceive of any such thing as ‘judicial separation as provided under the Hindu Marriage Act and the Special Marriage Act”. Though there is no law which specifically provides for the relief of judicial separation to the spouses, there are some landmark cases which extend the grounds provided under Section 2 of the Dissolution of Muslim Marriages Act, 1939, for the dissolution of marriage on the grounds of judicial separation. Some of the grounds as provided under the Act are:

• ·       Repudiation of marriage by the wife before 18 years when marriage solemnised before 15 years,
• ·         Impotency,
• ·        Husband sentenced to imprisonment for 7 years or more,
• ·        No whereabouts known of husband for 4 years,
• ·       Neglect or failure to provide maintenance for 2 years
• ·        Insane or suffering from leprosy or venereal disease,
• ·         Failure to perform marital obligations for 3 years,

In the case of Ms (1985), 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 about the nullity of marriage, divorce, and judicial separation, which will apply to all people irrespective of their religion

Grounds of judicial separation in India

Adultery 

It refers to voluntary sexual intercourse between one of the spouses in a marriage with another person out of wedlock. In the case of Dr(1968), the Court gave an award of a legal break-up to the appellant (husband) on the ground that the respondent (wife) had been dedicated to making love with a third human. The Court held that “the aid of allowable separation will be determined even though an alone act of treachery in consideration of the other husband is confirmed.”

Cruelty

, Cruelty which is a ground for dissolution of marriage may be defined as wilful and unjustifiable conduct of such character as to cause danger to life, limb or health, bodily or mental, or as to give rise to a reasonable apprehension of such a danger. The question of mental cruelty has to be considered in the light of the norms of marital ties of the particular society, to which the parties belong, their social values, status, and the environment in which they live. Cruelty need not be physical. If from the conduct of the spouse it is established or an inference can be legitimately drawn that the treatment of the spouse is such that it causes apprehension in the mind of the other spouse, about his or her mental welfare then this conduct amounts to cruelty; Maya Devi v. Jagdish Prasad, AIR 2007 SC 1426.

Desertion

has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive; ¹⁹ [***] ²⁰ [ Explanation. —In this sub-section, the expression “desertion” means the desertion of the petitioner by the other party to the marriage without reasonable cause and the consent or against the wish of such party and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly.]

Wilful neglect 

When any of the spouses intentionally neglects the other party without physically deserting, it is wilful neglect. It includes the refusal to cohabit or the neglect of various other marital duties. 

Conversion 

When any one of the spouses has converted to another religion and ceased to be a Hindu, the other party can appeal for judicial separation. In the case of Vilayat Raj v. Smt. Sunila (1983), where the husband converted to Islam and moved a petition for dissolution of marriage. The question was whether an apostate of Hinduism could file a petition for dissolution of marriage under the Hindu Marriage Act, 1955. The Court held that he can file a petition as the conversion of religion per se does not end the marriage but only acts as a ground for ending the marriage. However, the Court also observed, “party is not entitled to take advantage of his wrong or disability and gain from a situation which he has brought about, resulting in detriment to the other spouse.” 

Unsound mind or mental disorder 

If any one of the spouses is of unsound mind or suffering from any mental illness or disorder that is incurable in nature and it is difficult for another party to live with the spouse with such a condition, one can file an appeal for judicial separation. In the case of Anima Roy v. Pro both Mohan Roy (1968), placed the partner required the nothing of the wedding on the ground of the emotional disorder of welcoming spouse, it was argued that she was in pain from emotional disorder on the date of the wedding. The Court acted not to admit the welcome petition as skilled was a redundant delay of three ages from the date when it was asserted that he came to hear about the welcome bride’s question, in the grinding of the petition, and the evidence proved was more not acceptable. e is confirmed.”

Venereal communicable diseases 

If any one of the spouses is suffering from any venereal diseases which are communicable and incurable, like HIV/AIDS, HPV, syphilis, etc., the other party can pray for the agreement of judicial separation. In the case of Madhusudan v. Smt. Chandrika (1975), the husband appeals against the dismissal of his petition by the District Judge for annulment of marriage or judicial separation on grounds of his wife’s suffering from venereal disease, syphilis. The Court set aside the appeal as he was unable to prove that his wife was suffering from syphilis for a period of three years before the date of the petition. It was also not proved that the disease was incurable. 

Renunciation 

Renunciation means that the person has abandoned the whole world and all the material pleasures to lead a spiritual life and attain enlightenment. It is one of the grounds on which a party to a marriage can pray for judicial separation. In the case of Teesta Chattoraj vs. Union of India (2012), the expression ‘renounce the world’ was defined as withdrawing from worldly interests to lead a spiritual life. It means formally consenting to abandon, surrender, or give up a claim, right, possession, etc.

Presumption of not being alive 

When any of the spouses go missing for a minimum of 7 years and there is no information about his/her aliveness, nor is his/her family or friends aware of his/her presence, then it is presumed that the spouse has died and the other spouse can pray for judicial separation on this ground.   

Grounds of judicial separation available to the wife

Bigamy 

It refers to marrying the other person when one is already legally married to one person. Before the commencement of the Act, if the husband remarries the other woman, even when his wife is alive, the wife could file a petition for a grant of judicial separation from her husband. In the case of Harmohan Senapati v. Smt. Kamala Kumari (1978), the plaintiff (wife) has filed a suit for judicial separation as the defendant (husband) has married the other woman and lived with her without dissolution of their earlier marriage. 

Guilty of rape, sodomy or bestiality 

If the husband, after the marriage, becomes guilty of rape, sodomy, or bestiality, then the wife is entitled to file a petition for judicial separation on this ground. For example, if ‘A’ and ‘B’ are husband and wife and the husband ‘A’ is found guilty of rape of another woman, the wife ‘B’ can file a petition for judicial separation.  

Non-resumption of cohabitation after an order of maintenance

If any decree or order was passed against the husband for providing maintenance to the wife under various acts like the Hindu Adoptions and Maintenance Act, 1956 or under Section 125 of the Code of Criminal Procedure, 1973, and no cohabitation between the husband and wife was resumed for a period of 1 year or more, the wife can file a petition for judicial separation. 

Repudiation of marriage after the age of 15 and before the age of 18

If the marriage was solemnised when the girl has not attained 15 years of age and she has repudiated the marriage after attaining the age of 15 but not before attaining 18 years of age, the wife can file a petition for judicial separation. This ground plays a great role in providing relief to minor girls, especially from backward communities, who were married against their wishes.  

Consequences of judicial separation

After an agreement of judicial separation, the husband and wife are no longer obligated to live together. Although their legal status as husband and wife remains unchanged, cohabitation between them remains suspended. Section 376B of the Indian Penal Code, 1860 provides legal relief to a separated wife by stating that if, after the decree of judicial separation, the husband had sexual intercourse with her without her consent, he would be held liable for punishment. The punishment for such an offence will be for a minimum term of 2 years, which may extend to 7 years. Moreover, the spouses were restrained from remarriage during the period of judicial separation. In the case of Narasimha Reddy v. Basamma (1975), it was held that if any spouse carried out a marriage during this period of separation before divorce, it would amount to bigamy. The spouses after the judicial separation were entitled to the same property rights as before, as upheld in the case of Krishna Bhattacharjee v. Sarathi Choudhary (2015), where 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.

Sometimes, the court grants a decree of judicial separation for a period of one year so that spouses can take decisions either for conciliation or divorce. This period provides them time to introspect their marriage and provides an opportunity for reconciliation. 

In the case of Amit Singh v. Sandhya Singh (2019), the Allahabad High Court has enumerated various points of difference between the matrimonial relief of divorce and judicial separation. 

Some of them are as follows:

Grounds	Divorce	Judicial Separation
Termination of marriage	After the agreement of divorce, the marriage bond between the spouses is terminated.	After the agreement of judicial separation, the marriage bond between the spouses is not terminated.
Mutual rights and obligations	The mutual rights and obligations against each other end with the divorce.	The mutual rights and obligations against each other remain suspended only in the case of judicial separation.
Chance of reconciliation	There is no chance for reconciliation as the marriage no longer exists.	There is a chance for reconciliation if the spouses agree to live with each other again and resolve their differences.
Right to remarry	The parties are allowed to remarry as they are no longer bound by any marital bond.	The parties are not allowed to remarry as their marital bond was merely suspended, not ended.
Status of being husband and wife	The parties are no longer called husband and wife.	Both parties remain husband and wife to each other.
Time for filing the petition	The divorce petition can only be filed after one year of the marriage.	The petition for judicial separation can be filed at any time after the marriage.
Process	It is a two-step process. First, for reconciliation and then for divorce.	It is a one-step process.
Rights and liabilities	The divorced partner loses all his/her rights to the partner’s assets.	The partner in a judicial separation has the same rights as the married ones in the assets of the partnership.

Why judicial separation is better than divorce 

It was held in differing cases that judicial separation is a ‘lesser evil’ than divorce, as the chances of reconciliation in the weddings are greater in the case of judicial separation. Different divorce, skilled is no permanent damage to matrimonial bonds in judicial separation. Accordingly, it specifies a moment of truth for both the bodies in the merger to introspect their connections and agree on their future environments, whether they want a divorce or a conciliation. Sometimes, disputes in marriages stand on account of a few immaterial matters and divorce performs expected a huge step for specific disputes. In specific cases, legal break-up specifies an alternative way of relaxing for the victim.

According to English law, there are two types of divorce:

1.   Absolute divorce (vinculo matrimonii), and

2.   Limited divorce (a mensa et thoro). 

A judicial separation is a form of limited divorce in which only the obligation of cohabitation is suspended while the marital bond still subsists. It acts as a final step before a permanent divorce to resolve their marital disputes. Moreover, this also provides some time for the parties to review their decision and take advice from their friends and family about the same.

In the case of Mozelle Robin Solomon v. Lt. Col. R.J. Solomon (1968), the Bombay High Court held, “The difference between the two is that a decree for divorce has the effect of dissolving the marriage and putting an end to the marital bond, thus making the absolute separation between the parties both in fact and in law. A decree for judicial separation is, however, not one of final irrevocability but is one for legal separation and does not of itself result in the dissolution of the marriage tie.” 

Can judicial separation be granted in place of divorce?

In the case of Vinay Khurana v. Shweta Khurana (2022), the Delhi High Court observed that matrimonial reliefs of judicial separation and divorce are completely different, although they are both granted on similar grounds. While judicial separation does not intend to end the marital bond between husband and wife, the divorce liberates them from their marital bond, giving them the right to remarry. Hence, the court held the earlier decision of the Family Court as faulty, which granted a decree of judicial separation in place of a divorce.

This case likewise talks about the capacities of the Domestic-relations court to alter the relaxation wanted for one body. It was held that it is other than the Family Court to substitute individual married relief wanted apiece bodies, accompanying the additional. It cannot tell the bodies what is ‘good and distressing’ for bureaucracy. It can only warn the parties, allowing for the possibility that miscellaneous facts guide the case.

How to apply for judicial separation 

A petition for judicial separation can be filed by either party, husband or wife, on the grounds provided under the respective acts. According to the provisions under Section 19 of the Hindu Marriage Act, 1955, every petition related to judicial separation shall be presented to the district court within the jurisdiction:

1.   Where marriage was solemnised,  

2.   Where the respondent resides at the time of the petition,  

3.   Where the spouses last resided, or 

4.   Where the petitioner resides at the time of the petition.

According to Section 20 of the Hindu Marriage Act, 1955, every petition should contain the facts and nature of the case on which the claim for judicial separation can be founded. It must also show that there is no collusion between the parties seeking judicial separation. 

Section 21 of the Hindu Marriage Act, 1955 provides that all the proceedings related to this Act are regulated by the Code of Civil Procedure, 1908. In Order VII Rule 1 of the Civil Procedure Code, 1908, it was provided that every plant for judicial separation shall contain the following information:-

1.   Name, place and residence of the petitioner,

2.   Name, place and residence of the respondent,

3.   Facts of the case,

4.   Jurisdiction of the court,

5.   Grounds for judicial separation,

6.   Relief that the petitioner seeks,

7.   Date and place of marriage. 

Afterwards such a petition, the court sends notice of the petition to the accused and hears two together the bodies’ debates. The court will test the reality of the bases under that the claim for judicial separation was fashioned and pass a decree of judicial separation if the satisfied accompanying allure of believeableness. The trial of a petition for judicial separation endures decide as speedily as likely or within six months from the date of the specific petition.

Earlier the bodies are judicially separated, they can still command a divorce if the circumstances of the case demand it. Under Section 13B of the Hindu Marriage Act, the bodies can get a ‘divorce on common consent on the ground that they are living individually for the end of one year or more. After the first motion and the performance of the divorce petition, they will receive an ending of six months, popular as a ‘cooling period’ that was accepted as a final offer to degrade their resolution. But this chilling ending was not unavoidable, exceptionally when the bodies were earlier in a manner suggestive of the law divided. It has a related process to a petition for judicial separation except that the divorce petition cannot convene before the individual period of the commemoration of the occasion of marriage.

Limitations of judicial separation

1.   Complex as divorce: Although it acts as an alternative to divorce, judicial separation is not a less complex process than divorce. The grounds for both of these matrimonial reliefs are the same and the procedures for filing petitions for both of them are the same. 

2.   Unnecessary marital bond: Judicial separation seeks to save that marital bond, which has already been broken on severe grounds like cruelty, desertion, adultery, etc. just to show society that keeping the marital bond alive is unnecessary.  

3.   Same psychological effect: The agreement of judicial separation projects the same stress and psychological tension in the minds of the spouses seeking separation as in the case of divorce. 

Status of judicial separation globally

England

The provisions for judicial separation in England are provided in Section 17 and Section 18 of the Matrimonial Causes Act, 1973. Either or both parties can file a petition to obtain a judicial separation. 

According to the Royal Commission on Divorce and Matrimonial Causes, appointed in 1909 and presided over by Lord Gorell, judicial separation forces celibacy while remaining in the ties of marriage. It was criticised many times due to its inadequacy to resolve the situation and its detrimental effects on the parties and their children. However, the Commission upheld the requirement of judicial separation for those for whom the divorce was repugnant on religious and conscientious grounds. Another Royal Commission on Marriage and Divorce in 1956 called for the retention of this matrimonial relief on similar grounds.

The USA

In the United States of America, it is known as ‘legal separation’ and it has the same meaning as judicial separation. Laws related to legal separation are different in different states of the U.S. In fact, some states do not even recognise the concept of legal separation. The states that recognise this concept consider it essential for religious purposes or for enjoying various other maintenance benefits. 

Australia

In Australia, the provision for separation is contained in Section 49 of the Family Law Act 1975, and it means no more living together as a couple. The federal family laws of Australia define separation as “an act of ending the marriage or de-facto relationship” and it involves the ending of cohabitation between the parties. The couples can also be separated under one roof by fulfilling certain criteria. This is called ‘separation under one roof.’ Neither any legal process to obtain separation is required nor any registration of separation needs to be done. But the couples need to inform the relevant authorities about the same. They also have to take note of the date of separation as it is a pre-requisite to obtaining a divorce in Australia. A couple can obtain a divorce only after a separation of one year or more. 

Canada

In Canada, the provision for divorce and separation is contained in Section 8 of the  Divorce Act, 1985. When the couples end their marriage and start living separately, then they are called ‘separate’. There is no concept of judicial separation as such, but there is a concept of ‘separation agreement’, which is a contract made between the parties divorcing or separating. Also, the separation for one year forms the ground for obtaining a divorce. A separation agreement is a contract between the couples that deals with various issues between the parties like living arrangements, division of property, maintenance, custody of children, etc.   

Conclusion

Marriage in our society, especially in India, is considered a sacrosanct union and the breakage of this sacred union is seen as an inauspicious event. This belief, from time immemorial, has mandated many couples to live in forced marriages, which are full of unhappiness. People hesitate to seek the relief of divorce as it is a very huge step for them, enough to tarnish their reputation, especially in the case of women. Hence, they can go for various other alternatives.

Judicial separation provides an alternative to divorce, which can be filed any time after the marriage. If the parties to the marriage are not happy with their marriage, they can pray for judicial separation and meditate on their relationship. There are many advantages of judicial separation over the agreement of divorce, as aptly stated by the courts, that it is a lesser evil than divorce. It provides time for the parties to rethink their decision and reconcile with each other. This tool has been proven in restoring peace among broken families and in maintaining the piousness of the institution of marriage. 

Frequently asked questions 

What happens after the decree of judicial separation?

After the decree of judicial separation, the wife and husband are free from the obligation of living together. During the period of separation, they get a chance to mend their relations and seek annulment of the decree of separation. They can also seek a divorce and dissolve their marital relationship if they are unable to restore peace between them.

Which is better for matrimonial relief, divorce or judicial separation?

Judicial separation seems to be a better matrimonial relief and the best alternative to divorce. Before the breakage of the marital bond completely, it provides a space for reconciliation. Moreover, it also does not dissolve the marital tie permanently, it just suspends some obligations and rights between them. 

Can a wife be entitled to maintenance from her husband after the decree of judicial separation? 

Yes, the wife is entitled to maintenance from her husband even after the decree of judicial separation. If the court finds that the wife is unable to meet her expenses, it can order maintenance for the wife. This position was held in the case of Rohini Kumari v. Narendra Singh (1971).

Can a Muslim woman seek the relief of judicial separation?

No, Muslim women cannot seek the relief of judicial separation as there are no provisions for judicial separation in their laws. Sharia law and other personal laws of Muslims do not recognise any such thing as judicial separation. They only recognise matrimonial relief of talaq (divorce).  

References

1. Family Law by Dr. Paras Diwan.
2. Family Law Lectures, Family Law-I by Prof. Kusum.
3. https://legalstudymaterial.com/judicial-separation/
4. https://bnblegal.com/article/judicial-separation-in-lieu-of-divorce/
5. https://lawtimesjournal.in/judicial-seperation/
6. https://www.lawcolumn.in/judicial-separation-under-muslim-law/
7. https://legalstudymaterial.com/judicial-separation/
8. https://probono-india.in/blog-detail.php?id=195
9. https://www.helplinelaw.com/family-law/JUDISI/judicial-separation-in-india.html
10. https://lawstudy.in/judicial-separation-under-hindu-law-india/
11. https://www.patnalawcollege.ac.in/econtent/JUDICIAL%20SEPARATION%20by%20Neha%20Singh.pdf