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Difference Between Judicial Separation And Divorce

Introduction

Marriage forms an indispensable part of Indian Society. Irrespective of what religion one follows, marriage forms an integral part of every religion. Therefore, the concept of marriage has become a vital part of every young Indian’s life. In ancient times, most religions strongly condemned the concept of divorce or separation as marriage was always regarded as a sacred.

Since marriage forms the core of Indian Society and values, divorce is neither encouraged nor appreciated by most religions. Marriage is often the centerfold of an Indian’s life, therefore, getting a divorce is not as easy as it seems. Not only can the legal process be lengthy, but the couple might be extremely hesitant due to the societal pressure of sustaining a ‘happily married life’. The divorce rate in western countries has seen an uptrend in the past few decades.

Can Judicial Separation and Divorce be used interchangeably?

The term Judicial separation is often interchanged with the concept of divorce. Therefore, it becomes immensely important to not only understand the precise definition and criterion of Judicial Separation, but also understand the thin line of difference between Judicial Separation and Divorce. If I had to explain the differentiation in layman terms, judicial separation does not omit the scope of reconciliation. By obtaining a decree of judicial separation, the parties are no longer required to cohabit, but it is different from divorce as there still lies a scope for reconciliation as stated earlier.

Nonetheless, judicial separation may result in a divorce. Another distinguishing factor between Judicial Seperation and Divorce is that both the parties continue to be husband and wife. Therefore, judicial separations result in the suspension of marital rights and obligations for as long as the decree of judicial separation subsists. Furthermore, by seeking a decree for judicial separation, if the wife dies, the husband can succeed to the property and vice versa.

As stated before, a judicial separation can be followed by a divorce but not vice versa. A divorce puts a complete end to a marriage. This also gives both the parties the right to remarry as the parties cease to be husband and wife. In this Article, we will be elucidating on both the concept of Judicial Separation as well as Divorce to thoroughly understand the distinction between these two.

What is Judicial Separation?

Judicial Separation refers to the separation that is authorized and granted by a court of law by passing a decree of judicial separation. Unlike divorce, judicial separation does not terminate the marriage. Here, the court legally ratifies the decision of the spouses to live apart. The spouses continue being married to each other.

What are the grounds for Judicial Separation?

Judicial separation cannot be granted as per a couple’s whims and fancies. There are certain grounds as per which judicial separation can be granted. As per the Hindu Marriage Act, the grounds for judicial separation are quite similar to the ones that are listed for seeking a divorce. Therefore, a party seeking a decree for judicial separation may file a petition on any of the grounds provided in section 13 (1) and section 13 (2) of the Hindu Marriage Act. In fact, a similar stance has been taken under the Special Marriage Act, 1954 (hereinafter referred to as the “Special Marriage Act”) as well.

Furthermore, the aforementioned Act goes a step further and provides another ground for judicial separation. As per Section 23 (1) of the Special Marriage Act, either of the spouses can file a petition of judicial separation on the ground of non-abidance to abide by a decree for restitution of conjugal rights. Subsequently, if the court is satisfied with the contentions and facts listed in the petition, it might grant the said decree. It is pertinent to note that there exists no provision for obtaining judicial separation under Muslim law. Furthermore, as per section 22 of the Divorce Act, 1869, adultery, cruelty, or desertion may form a ground for seeking a decree of judicial separation.

Can Court pass a decree for Judicial Separation in a petition for Divorce?

Where the court has been presented with a petition for divorce and the petitioner has failed to establish a ground for divorce, but through his contentions, a ground for judicial separation can be drawn, there is a possibility that in such a case the court, instead of granting divorce, might pass a decree of judicial separation. This is because judicial separation is categorized as a lesser relief than divorce. Nonetheless, this has a few exceptions. If a party files for a divorce by stating change of religion, renunciation of world or presumption of death as the ground of divorce, the Court cannot pass a decree for judicial separation.  instead of a decree granting divorce.

What is Divorce?

Divorce is the termination of marriage by the parties to a marriage. Divorce can be referred to as the legal process to dissolve a marriage. Therefore, this is also referred to as ‘dissolution of marriage’. There are different methods and grounds for obtaining a divorce under various different laws that are peculiar to that particular religion. Nonetheless, in this article, we only be restricting ourselves to the grounds for divorce under the Hindu Marriage Act.

What are the Grounds of Divorce Under the Hindu Marriage Act?

Divorce was not recognized in the ancient Hindu Law, but is now recognized in the Hindu Marriage Act. It was propounded that most of the grounds listed in the aforementioned Act are based on the Guilt theory. The fault grounds that are based on the aforementioned theory are Adultery, Cruelty, Insanity, Desertion, Leprosy, etc. Section 13 of the said Act lays down certain grounds for getting a divorce. Furthermore, it is now possible to obtain a divorce by mutual consent as per section 13 B. Certain grounds of divorce have been discussed below:

Adultery

Adultery refers to sexual intercourse between a male and female who are not wedded to each other, but at least one of them is wedded to another person. Hence, where the man is committing the said offence, the other person must not constitute as the offender’s spouse, and must be the spouse of some other man and the man (offender) must know or have reason to believe the same. The intercourse must also be voluntary. In cases of adultery, it might not be easy to prove it by exhibiting direct evidence as it is an act of quite personal nature and can be done extremely discreetly. Therefore, it becomes possible to infer this ground by certain circumstances.

Desertion

The spouse can seek divorce on grounds of desertion. This means that the petitioner should have been deserted for a continuous duration of minimum of two years immediately before presenting the petition in Court. The two essential ingredients of desertion would be an intention to desert and actual separation.

Cruelty

It is possible to state ‘cruelty’ as a ground for Divorce. Cruelty refers to and includes conduct that causes some kind of danger to life, health or limb or creates reasonable apprehension of such danger. Cruelty includes both Mental and Physicalphysical Cruelty. It can be subtle or brutal. It can be by words, gestures or even mere silence.

Conversion

Where the one party converts to another religion i.e., stops being a Hindu, the other party can file for divorce on the said ground. Therefore, it is necessary for one party to renounce Hinduism and convert to another religion for the other party to file for divorce on this ground.

Insanity

Where one party is of unsound mind (incurable) or suffers from mental disorder (continuously or intermittently) and the other party cannot be reasonably be expected to live with the former, the later may seek divorce on such grounds. The onus of proving unsoundness of mind vests on the person filing for divorce on such grounds.

Leprosy

Where the spouse suffers from an incurable and virulent form of leprosy, the other spouse may seek divorce on such grounds. Earlier, the condition of leprosy should have existed for three years, but The Marriage Laws (Amendment) Act, 1976 (hereinafter referred to as “the 1976 Amendment”), this is no longer a necessary condition and the time period is irrelevant.

Venereal Disease

A party may seek divorce on the ground of venerable disease (communicable form) being suffered by the other party.

Renunciation of the World

This is a peculiar ground of divorce that is only available under the umbrella of Hindu Law. A party can seek divorce on this ground when the other party renounces the world by entering into a religious order as this would be tantamount to civil death.

Spouse has not been Heard of as alive

Where the spouse has not been heard off as alive by people who would naturally know of him being alive (for instance, his family or friends), for a duration of minimum seven years, the other spouse may file for divorce on this ground.

Decree of Judicial Separation

After the decree of judicial separation has been passed and there has still been no cohabitation between the parties for a period of minimum one year after the passing of the decree, a decree of divorce can be granted to either of the parties. Nonetheless, it is essential to note that this is not an absolute right that is available to either of the parties.

Decree of Restitution of Conjugal rights

Where after the passing of the aforesaid decree, there has been no restitution of conjugal rights for a minimum duration of one year after passing of the said decree, either party could present a petition for divorce. Where after the passing of such the aforesaid decree, there has been no restitution of conjugal rights for a minimum duration of one year after passing of the said decree, either parties could present a petition for divorce.

Can the Parties seek divorce by Mutual Consent?

The answer to this question is affirmative as the parties can file for divorce by mutual consent on the fulfilment of the following conditions:

  1. Both parties have been living separately for at least one year.
  2. Both parties have not been able to live together.
  3. Both parties have mutually agreed to dissolve their marriage.

Divorce by Mutual Consent was introduced by The Marriage Laws (Amendment) Act. 1976 (hereinafter referred to as “the 1976 Amendment”). This Amendment added Section 13B to the Hindu Marriage Act, 1955. Prior to this Divorce by mutual consent was only available under the Special Marriage Act.

Are there any grounds that are only available to the wife?

There are four grounds of divorce that are specifically only available to the wife. They are as follows:

Bigamy

A wife can seek divorce on the grounds of bigamy. This ground can be availed only where the marriage was solemnised before the commencement of Hindu Marriage Act. It is pertinent to note that it is a mandatory condition for the wife to be alive at the time of presenting such a petition.

Rape, Sodomy or Bestiality

If the husband is guilty of bestiality, rape or sodomy after the marriage, the wife may seek divorce on these grounds.

Decree or order of maintenance

Where a decree or order has been passed against the husband awarding maintenance to the wife, in a suit under Section 18 of the Hindu Adoptions and Maintenance Act, 1956 or in a proceeding under Section 125 of the Code of Criminal Procedure and that since the said decree or order was passed, the parties have not cohabitated since for one year, the wife may seek divorce on such grounds.

Repudiation of Marriage

Although now the minimum age of marriage is eighteen years for a woman, prior to the 1976 Amendment, the minimum age of marriage for a woman was fifteen. If the parties were married before the girl had attained the age of fifteen and she had repudiated the marriage post attaining that age but before the age of eighteen, the girl may file for a divorce on the said ground. Consummation of marriage is irrelevant for obtaining divorce on such grounds.

Conclusion

The uptrend in divorce might be having far more adverse effects than anticipated. Nowadays, young couples seem to have adopted the concept of ‘live-in relationship’. The most common factor attributing the surge of live-in relationships and the subsequent decline in the rate of marriage would be the rise in divorce rate. The fear of ‘eventually being separated via a lengthy legal process of divorce’ has invoked a feeling of hostility towards the concept of marriage amongst the younger generation.  Therefore, it has become immensely important for a layman to understand different legal concepts and procedures related to marriage and divorce, like the difference between divorce and judicial separation.

References

  1. https://dawsoncornwell.com/en/what-we-do/separation-and-divorce/judicial-separation.html
  2. http://www.meerutcollege.org/mcm_admin/upload/1587302563.pdf
  3. https://indiankanoon.org/doc/1284729/
  4. Principles of Hindu Law by Adv. N.H. Jhabvala
  5. Family Law by Paras Diwan

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Aayushi Mittra

Aayushi Mittra is a Fifth Year Law Student pursuing 5 Years BLS LLB at SVKM's Pravin Gandhi College of Law. Securing AIR 18 in CS Foundation exams, she wishes to not restrict herself to the ambit of General Corporate Laws, but also wishes to explore various other fields of law like IPR, Cyber Law, Family Law, Capital Markets & Securities Laws and Sports Law. Apart from academics, she immensely enjoys participating in Drafting competitions, MUNs and Article Writing competitions.