Introduction:

Marriage is a blissful period of companionship and love but sooner or later the love fades and couples who are not really compatible with each other find it hard to continue in a legally recognized relationship, so they turn to divorce. However, the Indian marriage laws provide options other than divorce. Since marriage is so sacred in the Indian community, it is always the best option to try and keep the relationship going for the couple and for the benefit of any children born out of the marriage. So, judicial separation is a viable, and often a very important, option that the judiciary gives to couples who feel like they do not want to be legally obligated to another person. Although a divorce or an annulment are both available options, a judicial separation is very different from the two.

Meaning of Divorce:

A divorce is a legal dissolution of a marriage by a court through a decree of divorce. Couples can file a petition for mutual divorce (both parties mutually agree on getting a divorce) or a contested divorce (one party seeks a divorce without the consent of the other) and it both cases the court must be convinced that there is no chance of reconciliation between the parties. Contested divorce can be sought on the grounds of cruelty, desertion, adultery, conversion, mental disorder, communicable disease, renunciation of the world or presumption of death, by/of one of the parties.

What is judicial separation?

Judicial Separation is a chance for the couple to introspect about the chances of continuing their relationship or wondering whether a divorce is too drastic a step. It can be a step towards divorce or a step towards reconciliation because the court gives the couple time to consider the choices available to them and the effects of their decision. The reason that judicial separation is provided for under the law is so that the courts can ensure that the normal strain and stress of everyday life are not the causes of a decision to end a marriage. Couples that are judicially separated are legally married but formally separated so the couple can file for judicial separation any time after the solemnization of a marriage unlike divorce where a petition can be filed only after a year of marriage.

Difference between judicial separation and divorce

JUDICIAL SEPARATION

Can file a petition at any time post marriage.

Only one stage of judgement. If grounds are satisfied, decree granted.

Temporary suspension of marriage.

Cannot remarry after the passage of decree.

It is a ground for divorce.

A single instance of adultery sufficient for Judicial Sep.

The possibility of reconciliation.

DIVORCE

Can file only after completion of one year of marriage.

Judgement is a two-step process. First reconciliation, then divorce.

Brings marriage to an end.

Can remarry once decree in favor of divorce is passed.

Living in an adulterous relationship necessary.

No possibility of reconciliation.

How to file a petition for divorce or judicial separation?

A petition for divorce or judicial separation can be filed in a district court within the jurisdiction of whose:

The marriage was solemnized.

The respondent, at the time of presentation of petition, resides.

The parties to marriage last resided together.

The petitioner is residing, in case the respondent is outside territory of India.

Under Section 21 of the Act, all proceedings under this Act shall be regulated by the Code of Civil Procedure.

Under order VII, rule 1 of CPC every petition for divorce or judicial separation must contain:

The place and date of marriage

Affidavit of being a Hindu

Name, status, and domicile of husband and wife.

Name of children, their sex, and date of birth.

Full particulars of any litigation filed before the presentation of the petition for divorce.

Evidence of the grounds for divorce or judicial separation. For example- in case of cruelty, specific act of cruelty, medical report, place of cruelty, etc.

After filing of the petition, the other party is summoned. Both the parties are required to furnish evidence to strengthen their claim. After furnishing of evidence is over, the judge hears the argument of each side and passes a decree. Appeals against the decision of the lower court can be made in a higher court.

Some relevant questions

Is it possible to file for a divorce while the period of judicial separation is in continuance?

At any time after the pronouncement of decree of judicial separation a petition for divorce can be filed. However, where judicial separation has been taken within 12 months of marriage, a petition for divorce can be presented after one year of marriage.

Can a decree of judicial separation be converted to a decree of divorce?

Yes, a decree of judicial separation is a ground for divorce. After a decree of judicial separation is granted and petition for converting it into divorce is presented, the court will not inquire into any grounds for divorce and will grant a divorce.

Does judicial separation mean living in different homes? Or can one undergo a judicial separation while living inside one home?

Judicial separation does not require spouses to stay at different places. They can reside under a common roof. Only their conjugal duties towards each other come to an end.

What to do in case husband tries to establish physical relationship forcefully with his wife while undergoing a judicial separation?

In case husband tries to establish physical relationship with wife during the period of judicial separation he will be charged under Sec.376(A)of the IPC, wherein he will be punished with imprisonment upto 2 years and a fine

In the case of Joseph Shine v Union of India a 5-judge bench of the Supreme Court unanimously struck down Section 497 of the Indian Penal Code as unconstitutional because it not only treated women as the property of their husbands but it also infringed on the liberty and privacy of a woman. By restricting extra-marital affairs by the women while not extending the same to their husbands and by discriminating against married women, Section 497 of the Indian Penal Code perpetrated gender stereotypes in a country which is already riddled with gender bias within and outside marital relations and it was rightly struck down by the Supreme Court. As of 2019, adultery is no longer a criminal offence but it is still a valid ground for divorce or judicial separation.

Conclusion:

Judicial Separation can be the first step to a divorce and the last step in an attempt to reconcile the parties so it is an option that every couple seeking to dissolve their marriage should consider. Both these reliefs are granted by the personal laws and enforced by the judiciary to ensure sufficient recourse to parties whose marriages have broken down but there’s still a chance for reconciliation and parties whose marriages have irretrievably broken down.