Theoretical overview
There is similarity between Judicial Separation and divorce but there also exists difference between the two. The parties are not supposed to live together any longer as husband and wife after a decree of judicial separation is passed. They may live together but are still separated. If either party passes away after the decree of judicial separation is passed the property is inherited by the spouse.
Ingredients of Judicial Separation
- there is no dissolution of marriage
- the marital ties are merely suspended
- they have the same duties but they are no longer considered husband and wife.
- they are no longer needed to co-habit
- though not considered husband and wife they still cannot marry anyone else under the decree as this would be considered bigamy.
- maintenance can be claimed by either party.
Scope of Judicial Separation
Section 10 of the Hindu marriage act provides that the grounds for judicial separation will be same as the grounds for divorce This decree cannot be issued if the marriage was void-ab-initio.
This does not lead to permanent separation of the parties. The basic reason for Judicial Separation is that the parties can realise their obligations etc. before breaking off their marriage.
Ground for judicial separation is same as the grounds of divorce mentioned under section 13.
Important differences
Difference Between Judicial Separation And Divorce
| Judicial Separation | Divorce |
| The suspension of conjugal rights or marital obligations for a specific period of time can be called judicial separation. | Divorce is a process by which the marriage formally comes to an end. |
| Section 10 of the Hindu marriage act, 1955 | Section 13 of the Hindu marriage act, 1955. |
| Can file a petition at any time post-marriage. | Can file only after completion of one year of marriage. |
| The main objective is to grant an opportunity for a reunion in the marriage. | The main objective is to dissolve the marriage. |
| Only one stage of judgment. If the grounds are satisfied, the decree is granted. | Judgment is a two-step process. First reconciliation, then divorce. |
| Marital status remains maintained. | Dissolve the marital status. |
| Temporary suspension of marriage. | Brings marriage to an end. |
| Cannot remarry after the passage of decree. | Can remarry once decree in favor of divorce is passed. |
| The possibility of reconciliation. | No possibility of reconciliation. |
| The right to inheritance remains enforced. | The right to inheritance ends with the passing of the decree for the divorce. |
Relevant sections
Section 10 Judicial separation –
(1) Either party to a marriage, whether solemnized before or after the commencement of this Act, may present a petition praying for a decree for judicial separation on any of the grounds specified in sub-section (1) of section 13, and in the case of a wife also on any of the grounds specified in sub-section (2) thereof, as grounds on which a petition for divorce might have been presented.]
(2) Where a decree for judicial separation has been passed, it shall no longer be obligatory for the petitioner to cohabit with the respondent, but the court may, on the application by petition of either party and on being satisfied of the truth of the statements made in such petition, rescind the decree if it considers it just and reasonable to do so.
Important case laws
Sandhya Gupta Vs Saibal Gupta – Couple married for 20 years and had a son, problems started in 1955. They filed for divorce but the court claimed that the problems were due to sudden temperament changes and were provided with a decree of Judicial Separation.
Sureshta Devi v. Om Prakash (1991) – The Hon’ble Supreme Court held that living separately does not necessarily mean living in different places. The parties can be living together but not as spouses.
Points to remember
- There is similarity between Judicial Separation and divorce but there also exists difference between the two
- The parties are not supposed to live together any longer as husband and wife after a decree of judicial separation is passed
- Section 10 of the Hindu marriage act provides that the grounds for judicial separation will be same as the grounds for divorce This decree cannot be issued if the marriage was void-ab-initio.
- The basic reason for Judicial Separation is that the parties can realise their obligations etc. before breaking off their marriage
