Marriage, although can’t be broken according to old Hindu law. According to Smritikars, even death cannot break the relationship between a husband and a wife. It is the duty of the wife and husband to complete the religious duties made by God. Hence, according to earlier scriptures, a man is imperfect without a woman and vice versa.
But in modern days things are not same, if the spouse does not want to stay together then he/she can request relief under the Hindu Marriage Act, 1955 (hereinafter referred as HMA) by choosing the way of judicial separation or divorce.
In this article I will explain the provisions of judicial separation under HMA.
Judicial separation means in which party take permission from the Court to live separate and therefore not bound to cohabit with each other. In the petition of J.S., it does not mean that due to the decree of J.S. all rights and duties are dissolved between the parties, like in dissolution of marriage. In J.S. only matrimonial rights and duties are suspended during the period in which the decree subsist, therefore the parties hold the same tag as husband and wife and can’t remarry.
JUDICIAL SEPARATION (Section 10)
Under section 10, either party may present a petition for judicial separation on any ground which is specified under section 13(1) of the HMA. In the case of wife there are some additional grounds i.e. specified in subsection 13(2) under which a wife may file petition for divorce.
Therefore, it is the process were party live separate from their spouse, without obtaining a decree of divorce i.e. either party, may take the permission from the Court for not being bound to cohabit with each other. It also helps in cases to defend a petition for restitution of conjugal rights. Hence, during the period of judicial separation, no cohabitation takes place between the parties. It doesn’t imply that if any party is merely living separately than they have concluded as judicial separated.
And if there has been no resumption of cohabitation between the spouse for a period of one year or upwards, after the passing of the decree for judicial separation, they may file petition for divorce because it is also one of the ground for divorce.
In the case of Gomathi vs Kumaragurrupaan, it was held that if decree of judicial separation has been passed and parties don’t cohabit even after the period of one year in which the decree of judicial separation have been passed, therefore petitioner can file petition for divorce.
MAINTENANCE UNDER JUDICIAL SEPARATION
In the case J.S., the Court also deals with Maintenance of wife, custody of children (if any) and property.
In the case of Sohan Lal vs. Kamlesh, the Court held that in case of judicial separation, a wife can claim for maintenance from the husband if she is not able to maintain herself.
DIFFERENCE BETWEEN JUDICIAL SEPARATION AND DIVORCE
JUDICIAL SEPARATION AND DIVORCE
|Defined under sec. 10 of HMA||Defined under sec. 13 of HMA|
|May filed any time after their marriage||only if the parties completed one year of the marriage|
|Petition for merely suspending the marriage temporarily||Petition for ending marriage|
|After passing decree of judicial separation there is still possibilities of reconciliation of the parties.||After passing the decree of divorce, no possibility reconciliation of the parties.|
Judicial separation is a good instrument under HMA which give some time to both the parties so that they can think of self-analysis about their marriage. Hence law allows an opportunity to party to decide whether they think to continue their marriage while at the same time directing them to live separate, thus, law give them much needed space and independence to make their choices.
HMOP NO. 22 of 2014
AIR 1984 P H 332