Judicial Separation

Judicial Separation under the Hindu Law:

It is a separation of a spouse from the other spouse, from the obligation of living together.

It is a decree passed by the Court on the application of either party.

The reason for Judicial Separation is the same for the divorce.

Judicial Separation is not at all a complete dissolution of marriage.

It legally encourages to living apart.

After passing of the decree of Judicial Separation, the spouses have no such obligation to live together or cohabit with other.

It is a ground for divorce if the decree of Judicial Separation prolongs for one year.

Application for Judicial Separation can be filed at any time during the subsistence of marriage, but in the case of Divorce such application can be filed only after one year of the date of such marriage.

All the grounds for Divorce are also available for the application of Judicial Separation.

If the marriage itself is ‘void ab initio’ (from the very beginning itself), no such Judicial Separation can be sought, but can file an application for nullity of such marriage.

(Void marriages are such as bigamy, prohibited degree of relationship and the relationship of sapindas of each other; though such marriages are legally null and void, the children born out of such marriages are legitimate).

Grounds for Divorce:

1.       Having sexual relationship with any third party, other than his/her spouse.

2.       Treating cruelly (both physical and mental) – drunkenness is not amounting to cruelty, but it should be coupled with inflicting such cruelty.

3.       Deserting the other spouse for two years without any legal reasons.

4.       Converting into other religion.

5.       Either spouse is suffering from unsoundness of mind like schizophrenia.

6.       Either spouse is suffering from incurable leprosy, communicable venereal disease.

7.       Either spouse renounced the world and entered into religious order.

8.       Either spouse has not been heard as of his/her living for 7 years.

9.       No cohabitation for one year after passing of the decree of judicial separation or restitution of conjugal rights.

10.   Wife can also ask for divorce on the special grounds viz. (1) her husband has married another lady; (2) her husband is guilty of rape; (3) if he has not cohabitated for more than one year after passing the Court’s order of paying maintenance to her.

Judicial Separation as an ALTERNATIVE RELIEF:

Judicial Separation may be granted by the Court in the Divorce proceedings or as interim relief during the divorce proceedings.

We do not know the psychological reasons behind it in the minds of the parties who are very much interested to get Divorce rather than getting Judicial Separation.

The Courts may encourage passing such decrees of Judicial Separation rather than Divorce decrees in appropriate cases in the interest of society and to find out the bona fide of the ‘irretrievability of the broken marriages.’