What Is Judicial Separation in India

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Legal separation in India , often referred to as judicial separation, is a legal process that allows married couples to formalise their separation without dissolving the marriage entirely. Unlike divorce, which terminates the marital bond, judicial separation provides a middle ground for couples who may wish to live separately but remain legally married for various reasons. This legal status allows couples to address issues such as division of property, financial support, and child custody while maintaining the legal framework of marriage. 

In India, judicial separation is governed by specific laws and procedures which outline the rights and obligations of both spouses during the separation period. Understanding the intricacies of judicial separation is essential for couples navigating the complexities of marital problems and seeking legal clarity in their relationship.

What is Judicial Separation?

Judicial Separation is the legal separation of a married couple. In simpler words, even though their marriage does not dissolve, their marital obligations come to an end. The court passes a legal decree, and after that, the conjugal relations between a married couple come to an end. This is preferred in India due to cultural or religious reasons.

Judicial Separation in Hindu Marriage Act, 1955

Judicial Separation is discussed under section 10 of the HMA, 1955. Judicial separation means that the couple does not dissolve their marriage, i.e. the marriage continues; it's just that the husband and wife live separately. In legal parlance, it can be understood as a decree passed by the court that ceases the cohabitation of the married couple but does not dissolve their marriage. The idea behind giving judicial separation is to give the couple an opportunity for their marriage. In judicial separation too, the husbands are bound to give maintenance to the wife until divorce is granted. You can read more about divorce and judicial separation under section 10 of the HMA, 1955 through LawRato law guides.

What are the main differences between divorce and judicial separation?

1. Separated couples can seek judicial separation anytime after marriage, unlike divorce proceedings where couples must wait a year before they can apply for a divorce.

2. The Divorce, Dissolution, and Separation Act 2020 allows couples to seek judicial separation without proving irretrievable marriage breakdown through adultery, unreasonable behavior, desertion, consent, or five-year separation.

3. Judicial separation involves one single court order, unlike divorce/dissolution proceedings, which require two decrees. Once all legal requirements are met, the court pronounces the separation.

4. Judicial separation does not legally end a marriage, limiting remarriage until a divorce order is obtained, but allows future divorce applications.

5. Judicial Separation is provided under Section 10 of the Hindu Marriage Act, 1955 whereas Divorce is provided under Section 13 of the Hindu Marriage Act, 1955.

Grounds for judicial separation

1. Adultery- Under Section 13(1)(i) adultery means when one spouse voluntarily has sexual intercourse with another person other than his/her spouse. In Revathi v. Union of India and Ors, The court ruled that Section 497 of the IPC prohibits husbands and wives from prosecuting each other for adultery, disloyalty, or other offenses, thereby preventing them from using criminal law to harm each other.

2. Cruelty- Under Section 13(1)(i-a), cruelty means where a spouse inflicts his/her spouse with mental or physical cruelty. In the case of Shyamsundar v Santadevi, the wife was inflicted with physical torture by her in-laws and the husband also didn't take any stand to protect his wife. The Court held that the husband's intentional neglect to protect his wife amounts to cruelty.

3. Desertion- Under Section 13(1)(i-b), If a spouse leaves another spouse without informing them for at least two years before filing a petition, the injured party can claim judicial separation relief.

4. Conversion/ Apostasy- Under Section 13(1)(ii), apostasy is defined as one spouse getting converted to any religion other than the Hindu religion. In this case, the other spouse can file for judicial separation.

In the case of Durga Prasad Rao v Sudharshan Swami, it was observed that conversion cases often do not require formal rejection of religion or sacrificial ceremonies, leading to the question of fact.

1. Unsound mind- Section 13 (1)(iii), the unsound mind is defined as any mental condition of one spouse which makes it difficult for the other spouse to live with the unfit person then he/she can claim judicial separation. In the case of Anima Roy v Prabadh Mohan Ray, The respondent was diagnosed with an abnormal disease after two months of marriage, but the doctor couldn't determine the exact start of the illness, resulting in the disease not being proven at the time of marriage.

2. Leprosy- Under Section 13(1)(iv) leprosy is defined as any spouse who is suffering from leprosy then the other spouse can claim judicial separation because the spouse cannot waste their time on the sufferer as the ailment is irrecoverable.

3. Venereal disease- Under Section 13 (1)(v) it is defined that if a spouse has been suffering from an incurable, communicable, and irrevocable disease then the other spouse can claim for judicial separation.

4. Renouncing the world- Under Section 13(1)(vi), it is defined that under Hindu Law renouncing the world or “ Sannyasa” means that a person has given up the world and leads a holy life. He is considered dead. In such a case the spouse can file a petition for judicial separation.

5. Civil Death/ Presumed Death- Under Section 13(1)(vii), it is said that if a person is not found for 7 or more than 7 years and none of his/her relatives have heard from him then the spouse can file a petition for judicial separation on the assumption that he is dead. LawRato will help you consult with the top divorce lawyers in India by connecting you with them while maintaining confidentiality.

Filing petition for judicial separation

1. Application: Any one person (applicant) can apply to the family court. However, from April 2022 there is a new provision that states that the couple can apply jointly as “ applicant 1” and “ applicant 2” . Under joint application, applicant 1 will complete the application and will send it to Applicant 2 for review and consent. The application will consist of the names of the applicants, marriage dates, and the reason for seeking judicial separation. If the application is made separately, then the Court will send a copy of the application to the other person i.e. the respondent.

2. Acknowledgment of service: The respondent after receiving the copy of the application needs to complete a form called Acknowledgment of service. This form confirms that they have acknowledged the receipt and this form is required to be returned to the Family Court within 14 days.

3. Contested judicial separation: If the respondent does not acknowledge the application then it will be considered as a defended or contested judicial separation. The respondent has 21 days to file an answer in court, but due to April 2022 reforms, a judicial separation cannot be contested under certain circumstances.

4. Cooling-off period and confirming the application: From, the date on which the application is approved by the Family Court until the applicants decide on judicial separation a 20-week cooling-off period is given to re-analyze their marriage.
   
   In the case of Shilpa Sailesh v. Varun Sreenivasan, the Supreme Court affirmed its authority to grant divorce without strict adherence to the procedural requirement of the second motion outlined in Section 13B of the Hindu Marriage Act. While this section mandates a six-month waiting period after filing the first motion for divorce, the Court clarified that it retains the discretion to grant divorce on a joint application if all conditions are satisfied and deemed appropriate. The Court acknowledged that in cases of extraordinary hardship, characterised by prolonged suffering and contentious legal battles, parties may jointly seek divorce as a means to pursue a fresh start.

5. Judicial separation order: The Family Court will review and approve all judicial separation documents from the separated couple, and if uncontested, set a date for the pronouncement.

How long does it take to get a judicial separation order

It takes 6-9 months to obtain a judicial separation order.

What are the effects of judicial separation

Three main effects of judicial separation are

• Separated couples no longer have a duty to cohabit
• The court can make financial orders,
• Property devolves if one dies without leaving a will, as if the other person died, preventing the surviving spouse/civil partner from inheriting.

A will allows a spouse to inherit property after death, regardless of judicial separation or divorce.

Can I still divorce if I obtain an order of judicial separation?

A person or parties can apply for divorce after 12 months of marriage, requiring separate court applications for termination or dissolution proceedings.

How are financial matters dealt?

Judicial separation allows courts to make financial and property orders, but cannot order a 'clean break' due to the parties' still being married/civil partners. However, court orders can record the couple's intention to be financially independent.

The Court can make financial orders like a lump sum, property adjustment, and periodical payments, but under judicial separation, it can only make a pension attachment order.

Separated couples can enter into a financial consent order, which includes agreed terms and is presented to the court for approval, making the order legally binding.

If a separated couple cannot agree on financial division or property transfer, they can apply to the court for financial proceedings. The court will set directions and conduct a hearing, requiring full disclosure. If a settlement isn't reached, the court will determine a fair settlement.

Maintenance in judicial separation

The Supreme Court has ruled that maintenance can be claimed by a judicially separated wife.

The trial court granted a woman maintenance, but the Patna High Court turned it over, leading the woman to file a case against the decision. The court rejected the wife's maintenance due to her incapacity to maintain herself and the husband's neglect.

The court denied the husband's argument that a divorced wife is not allowed to maintain under section 125(4) of the Code of Criminal Procedure, 1973, stating that a judicially separated wife is also entitled to maintenance.

The Supreme Court remanded the case to Patna High Court, noting the wife hasn't paid maintenance for nine years.

Why do we need a lawyer?

The Hindu Marriage Act, of 1955 allows individuals to exit a marriage if they're unhappy, but only if there's a valid reason. This act aims to resolve disputes and break marital ties, ensuring a fair process for divorce.

You can also use LawRato's Free Legal Advice service to get free advice on your case from expert divorce/matrimonial lawyers.

Advocate Chikirsha Mohanty

4.0 | 2+ user ratings Greater Kailash - 1, Delhi
5 years

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