For most couples, marriage is bliss but it’s true to believe that there are many unfortunate couples whose marriages are on the rocks. Their marital life becomes a nightmare due to various factors, including marital discord and divergence of behavior, thoughts, and opinions. Divorce is the commonly resorted option by these couples in India. There is another option available to these unfortunate couples and it is called judicial separation.
Judicial Separation is a legal process by which married couples are formally separated, despite being legally married. It is generally a step toward divorce but not as same as divorce. The separation is granted by Court in a form of a Court order. Once the parties are granted an order of judicial separation, it allows both the husband and the wife to live separately and give time to their strained relationship so that it heals with the passage of time. Husband and wife get some time to live alone, introspect and reflect upon their supposed marital relationship. They can continue the marital relationship if they decide to live as a husband and wife after the expiry of this term that is described in the judicial separation.
Section 10 of the Hindu Marriage Act, 1955 provides grounds for judicial separation. Grounds of Judicial Separation are cruelty, adultery, desertion, forced conversion of religion, incurable diseases like leprosy, insanity, venereal diseases that are communicable, renunciation of the world by a spouse on religious grounds, either of the spouse not alive and seen for more than seven years. If the individual applying for judicial separation is a wife, she has another ground upon which she can do so. If there is proof that her husband married another woman before her marriage and that woman is alive while this petition is being presented, the woman can easily get judicial separation from her husband. A woman can also apply for judicial separation from her husband on grounds of rape, sodomy, and bestiality.
After the Court passes the decree of judicial separation, the party may live separately. The Standard of proof in the case of judicial separation is lesser in degree as compared to in the contested divorce. Judicial Separation provides ground for divorce in the event of no cohabitation between spouses between the period of one year after the passing of the decree of judicial separation. It is also permitted subject to the approval of the Court, that at the appropriate stage, on application by the party filing case of judicial separation to convert to divorce. Although the timing of such an application is a vital factor.
Consequences of Judicial Separation
Although judicial separation doesn’t include any similarity with a divorce, it has a similar effect/consequence with respect to the inheritance of properties. Any property duly acquired after the order of Judicial separation has been passed, can be disposed of by the spouse as if he/she were unmarried, similarly in the likelihood of death of a spouse, who died intestate, the property would be distributed among his/her legal heirs exactly as the husband or wife were already deceased.
In conclusion, judicial separation is when a court mandates a husband and wife to live apart for a set amount of time and forbids them from cohabiting. The marriage of the couple isn’t dissolved but is still in force by virtue of judicial separation.
