Provision related to Judicial Separation

The provision for judicial separation is contained in section 10 of the Hindu Marriage Act, 1955. The section reads as under:

"A decree for judicial separation can be sought on all those ground on which decree for dissolution of marriage, i.e. divorce can be sought."

Here question arises what is the meaning of Judicial Separation: In strict sense a court decree requiring a man and wife to cease cohabiting but not dissolving the marriage. 

But in broader sense it can be said that Judicial Separation is a legal process by which a married couple may formalize a de facto separation while remaining legally married. A legal separation is granted in the form of a court order, which can be in the form of a legally-binding consent decree. The most common reason for filing with the courts for a legal separation is to make interim financial arrangements for the two of them, such as deciding which one will pay which bills, possess which property, and whether one of them shall pay the other temporary financial support. These financial arrangements are actually what the term “separate maintenance” refers to, and “separate maintenance” is not a synonym for “legal separation”.

Hence, judicial separation can be had on any of the following grounds:

1.   Adultery

2.   Cruelty

3.   Desertion

4.   Apostasy (Conversion of religion)

5.   Insanity

6.   Virulent and incurable form of leprosy

7.   Venereal disease in a communicable form

8.   Renunciation of world by entering any religious order

Has not been heard of as being alive for seven years

If the person applying for judicial separation is the wife, then the following grounds are also available to her:

  1.   Remarriage or earlier marriage of the husband but solemnized before the commencement    of Hindu Marriage Act, 1955, provided the other wife is alive at the time of presentation of  petition for judicial separation by the petitioner wife.

2.   Rape, sodomy or bestiality by the husband committed after the solemnization of his marriage with the petitioner.

3.   Non-resumption of co-habitation between the parties till at least one year after an award of maintenance was made by any court against the husband and in favour of the petitioner wife.

4.   Solemnization of the petitioner wife’s marriage with the respondent husband before she had attained the age of 15 years provided she had repudiated the marriage on attaining the age of 15 years but before attaining the age of 18 years.

The effect of the decree is that certain mutual rights and obligations arising from marriage are put under suspension. The main purpose behind filing the petition for Judicial separation is to make interim financial arrangements for two of them, such as deciding which one will possess which property, and which one of them shall pay the other temporary financial support etc.

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 statement made in such petition, rescind the decree if it considers it just and reasonable to do so. Generally court avoids to pass decree of divorce so it gives time to both the parties that when they will be separated to each other then both the parties will feel the need of other party and there are chances that both parties(husband and wife) can be reunited again.