History of separation
Marriage, divorce, inheritance and succession, in India, come under the domain of personal laws. These personal laws have their roots in various religions and India has had a long history of personal laws. So, as an Indian citizen, our rights are determined by the religion we are born into. This includes the right to divorce to spouse and the various grounds of separation are based on the respective personal laws which were used to solemnise the marriage. Presently, Hindu, Buddhist, Sikhs and Jain are governed by the Hindu Marriage Act, 1955. Muslims are governed by the Dissolution of Muslim Marriages Act, 1939. Christians are governed by the Indian Divorce Act, 1869. Parsis are governed by the Parsi Marriage and Divorce Act, 1936. These acts lay down the various conditions under which spouses can claim for divorce.
Scenario of Separation in marriages
Out of 1000, only 13 marriages end in divorce in India. “1.36 million people in India are divorced. That is equivalent to 0.24% of the married population, and 0.11% of the total population,” said a 2016 BBC report.
These numbers make us feel that people India are very happily married and marriages continue till death. But, this is only the half-truth. The numbers only indicate the statistics of marriage but the status of relationship i.e. happily married, abusing relationship etc. can not be told.
Women in India do lack the ability to dissolve marriages. The reasons are both social and economic. A huge number of Indian women are not financially independent, which only hampers their outreach to the least limit. Then, the social stigma regarding Divorce jumps in and then children jump in. In India, the ideal woman is groomed to sacrifice everything at the altar of patriarchy.
From this, we can understand that low divorce rates do not mean happy marriages but hides the reality of women’s life.
Main reasons for separation
The main reasons why marriages end in divorce in India range from abuse, financial issues, to lack of intimacy, to unrealistic expectations, not being ready for marriage, difference in background, inequality within the relationship, different interests/incompatibility etc. Majority of the people believe that lack of intimacy is the main reason behind divorces but, according to Pooja Bedi in her article in the TOI, lack of communication is the main reason behind the same.
What is judicial separation?
Judicial Separation is a provision under the Indian marriage laws. The decree of Judicial Separation provides that both the parties live separately for a period of time giving both the husband and wife adequate space, more independence and the time to think about continuing their marriage or not. During this phase, both the parties still carry the same legal status of being the husband and the wife and yet at the same time they live separately also.
Grounds of getting decree for judicial separation
The various grounds on which Judicial Separation can be granted are:-
- Adultery – If either of the spouses is being cheated upon by other spouse.
- Child marriage – If either of the spouses is married without her/his consent before attaining 18 years of age.
- Cruelty – If either of the spouses or both are cruel towards one another.
- Desertion– If either of the spouses is missing since seven years and above or is not alive.
- Forced conversion of religion – If either of the spouses is being forced by the other one to change and convert to her/his
- Incurable diseases – If either of the spouses suffers from incurable diseases such as leprosy, cancer, Ebola, etc…
- Insanity or abnormality – If either of the spouses is not in a sound condition of mind.
- Venereal or sexual diseases – If either of the spouses is suffering from sexual diseases such as AIDS, HIV, Genital Herpes, Syphilis, etc…
- Rape, Sexual Harassment, Molestation, Bestiality and Sodomy.
- Renunciation of the world by either of the spouses on religious or spiritual grounds.
Meaning behind issuing of Judicial Separation
Judicial Separation is also termed as an alternative to Divorce. During the time period mentioned in the decree of Judicial Separation, both the husband and the wife get an opportunity to introspect about giving a chance to their marriage, before going on with the divorce proceedings. As they get more time, independence and valuable chance to introspect, they become more aware about their situation, problems and issues. Due to the addition of awareness, time and more independence the solution of these problems come into clarity and, if they wish, the solution towards the problems can be found.
There is a lot of social stigma revolving around the idea of issuing Judicial Separation. Most of the women choose to suffer from the problems which arise in their marriage instead of trying to solve it or mention it in front of their spouses. This makes the relationship unhealthy and the idea of separation or the road towards a divorce is paved. The same goes for men too. Marriage is not an easy task to follow but it is not necessary that if a problem comes only the last resort of issuing a divorce shall be considered instead of directly addressing to the problem.
The decree of Judicial Separation is a very well thought idea. It provides the time to the married couples who feel that they are not able to carry their married relationship further the reason for the same could be non addressing of problems, issues, cruelty, insanity, adultery etc. The time period is given so that it can be utilised to solve the problems which arose in their relationship earlier. Also, it can be taken if both the parties officially want to take a break from their relationship.
It can also be termed as a final chance given to both of the spouses to work on their relationship after which their relationship would be ended by divorce officially.
What is a Divorce?
A divorce is a legal action between married people to terminate their marriage relationship. It can be referred to as dissolution of marriage and is basically, the legal action that ends the marriage before the death of either spouse.
Difference Between Divorce and Judicial Separation
The grounds for getting Divorce and Judicial Separation are same but the procedures of these two are completely different.
- If the decree for divorce is granted to the two parties i.e. husband and wife, the marriage ends and parties can enter into new domestic relationships with other people. While, if the two parties are granted the decree of judicial separation they are still considered to be married and therefore, can not engage into new relationships.
- The process of judicial separation involves only one judgement, whereas the divorce procedure involves two judgements, one when the petition is filed and the other one 6 months post the first judgement.
- The judges in the hearing of petition for judicial separation presume that the couple can reconcile and resume cohabitation but while hearing a petition for divorce, the judges are more concerned about the permanent breakdown of the marriage.
How to file for Decree of Judicial Separation
Under Muslim Law, the majority of the personal laws have been codified and the rituals and laws carry out their function according to the Holy Quran and the Hadiths. There is no provision for judicial separation under Dissolution of Muslim Marriage Act, 1939 or the Muslim Women (Protection of Rights on Marriage) Act, 1986, etc.
Under Hindu Law, The Hindu Marriage Act, 1955 provides for the judicial separation under Section 10 as a mechanism to dissolve the marriage with the provision to keep a one year time in hand for reconciliation.
The process of obtaining the decree of judicial separation is the same as the process of obtaining the decree of divorce between the two spouses. The spouse, seeking judicial separation, has to file a petition for judicial separation before the district court or the family court mentioning the ground or grounds under which judicial separation is claimed. If the court is satisfied with the grounds and the case is properly made out, the spouses can get judicial separation.
Judicial separation is a legal break up by court which later may convert into a patch up. In simple words, judicial separation refers to release from matrimonial duties or obligation for certain period of time. The objective of court to give judicial separation to the aggrieved party is to think about their relationship and give it another chance before divorce. Judicial separation can be divorce but divorce can never be judicial separation and judicial separation is a ground for divorce. And it is not necessary for the aggrieved parties to live separately. They can live under same roof. It is release from duties not from the house.
2016 BBC report
This article has been written by Anushk, 1st Year BALLB(H) student at CHRIST(Deemed to be University).
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