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Judicial separation: procedures and steps
06-Feb-2023 (In Family Law)
I am writing on behalf of my relative, who is 40 years old, Hindu Brahmin.in Bangalore. He is not highly educated. Currently he is residing with his wife and daughter in a rented house. Married for 7 years and has a daughter of 6 years old. Wife is not at all dutiful to lead a normal family life, extremely lazy, not at all taking any responsibility towards anything.He is not able to work peacefully, her weight is 90+kgs, but still no seriousness towards health and useful activities in life..she knows very well how to do the things/work , but she doesnot do. Now he is going for the judicial separation by filing the petition through a lawyer. For her alternate arrangement is done for accommodation/food in different place. Also child is more attached to dad.But if she comes home back or his workplace , what action can he take to stop her doing so?
The ground for divorce and judicial separation are the same, so better file for divorce and the court has option either to order for judicial separation or divorce, further he can file a police complaint or take an order from the court not to disturb or visit his work place or home till the case is decided as he has already made alternative arrangements for her.
Helpful?
Adv. Bharat Narasgouda
Belgaum | 500+ Answers
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Dear Sir/Madam,
Please follow the following procedure.
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MARRIAGE - JUDICIAL SEPERATION AND DIVORCE
Though section 10 of the Hindu Marriage Act does not provide any time as to how long judicial separation can last. But section 13 of the Act provides that if there is no resumption of co-habitation between the parties one year after the decree for judicial separation is passed, the parties can get a decree for divorce on this ground itself. But divorce on this ground will be given only when one year has expired after the passing of the decree for judicial separation and not earlier. The reason for this is that one year is a long period and it provides sufficient time to the parties for reconciliation or to arrive at a decision. If the parties fail to overcome their differences within this period, then there is no fun in allowing the legality of the marriage to just linger on when in substance the relationship of marriage has long expired.
It is to be noted, however, that if the parties do agree to resume co-habitation any time after the passing of the decree for judicial separation, they can get the decree rescinded by applying to the court. The Act does not refer to any specific grounds on which a decree for judicial separation can be annulled or rescinded. Section 10(2) however, empowers the Court to rescind the decree for judicial separation if it considers it just and reasonable to do so. However Courts have repeatedly warned that this power of rescission has to be exercised with great circumspection and not in a hurry and only after satisfying themselves that it would be just and reasonable to allow such rescission.
Please follow the following procedure.
========================================================================
MARRIAGE - JUDICIAL SEPERATION AND DIVORCE
Though section 10 of the Hindu Marriage Act does not provide any time as to how long judicial separation can last. But section 13 of the Act provides that if there is no resumption of co-habitation between the parties one year after the decree for judicial separation is passed, the parties can get a decree for divorce on this ground itself. But divorce on this ground will be given only when one year has expired after the passing of the decree for judicial separation and not earlier. The reason for this is that one year is a long period and it provides sufficient time to the parties for reconciliation or to arrive at a decision. If the parties fail to overcome their differences within this period, then there is no fun in allowing the legality of the marriage to just linger on when in substance the relationship of marriage has long expired.
It is to be noted, however, that if the parties do agree to resume co-habitation any time after the passing of the decree for judicial separation, they can get the decree rescinded by applying to the court. The Act does not refer to any specific grounds on which a decree for judicial separation can be annulled or rescinded. Section 10(2) however, empowers the Court to rescind the decree for judicial separation if it considers it just and reasonable to do so. However Courts have repeatedly warned that this power of rescission has to be exercised with great circumspection and not in a hurry and only after satisfying themselves that it would be just and reasonable to allow such rescission.
Helpful?
Adv. Kishan Dutt Kalaskar
Bangalore | 500+ Answers
Chat
Disclaimer: The above query and its response is NOT a legal opinion in any way whatsoever as this is based on the information shared by the person posting the query at lawrato.com and has been responded by one of the Divorce Lawyers at lawrato.com to address the specific facts and details.
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