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Judicial Separation in India

A marriage ceremony is one of India’s most essential and promising agreements between men and women. Personal laws govern marriage, divorce, inheritance, and succession in India. These personal rules have their origins in numerous faiths, and personal laws have a long history in India.

As a result, the religion we are born in decides our rights as Indian citizens. It provides the right to divorce from the spouse, and the numerous grounds for separation get based on the respective personal laws used to solemnise the marriage.

The Hindu Marriage Act of 1955 now governs Hindu, Buddhist, Sikh, and Jain marriages. The Dissolution of Muslim Marriages Act of 1939 governs Muslims, the Divorce Act 1869 governs Christians, and the Parsi Marriage and Divorce Act of 1936 governs Parsis.

It is apparent that under this ancient marriage regimen, there was no permission from either party about practical and day-to-day difficulties that may arise throughout the marriage, which go well beyond religious conventions. As a result, the Hindu Marriage Act got enacted to guarantee married persons’ legal rights. It even provided possibilities for cancelling said marriage within particular parts with restrictions and boundaries that any party may consider.

Meaning of Judicial Separation in India

The Indian marriage laws provide a mechanism for Judicial Separation, and the court requires a time of separation before beginning the divorce process. Under a Judicial Separation decision, both spouses live apart for some time, giving them ample space, independence, and time to consider whether or not to continue their marriage. During this stage, the partners retain the legal status of husband and wife while also living separately.

Grounds for Judicial Separation in India

  • Adultery – occurs when one of the spouses freely engages in sexual relations with someone other than their spouse. In this case, the offended person may seek remedy, but the intercourse must occur after the marriage.
  • Cruelty – When a spouse abuses their partner cruelly or causes mental or bodily anguish after the marriage. The victim may submit a petition based on cruelty.
  • Desertion – In this section, it gets specified that if one spouse leaves the other spouse for any reason without telling them for not less than two years before the filing of the petition by the other spouse, the wounded party has the right to seek judicial separation relief.
  • Unsound mind – If one of the spouses has a mental illness, it is difficult for the other spouse to live with the sufferer. The other spouse may seek court separation relief.
  • Leprosy – If one of the spouses is suffering from an illness that cannot get cured, such as leprosy, the other party may submit a petition for judicial separation since they cannot spend their own time because of the sufferer
  • Venereal Condition – If one of the parties to a marriage, or a spouse, has an incurable and contagious disease that the spouse was unaware of at the time of marriage, it might be a legal reason for the spouse to submit a petition for judicial separation.
  • Renunciation of the world – Hindu law, renunciation of the world refers to as "Sannyasa." Renunciation from the word denotes a person who has given up the world, lives a holy life, and gets regarded as a civil dead. If a spouse chooses to live a religious life and renounces the world, their partner may move for judicial separation.
  • Presumption of death/civil death- If a person has been missing for seven years or longer and no one has heard from them, they are considered dead. In this case, the other spouse may seek judicial separation.
  • Rape, sodomy, or bestiality – If her spouse is found guilty of rape, bestiality, or sodomy after the marriage, the woman has the right to submit a petition for judicial separation.
  • Repudiation of marriage/puberty option – If a girl marries before she reaches the age of 18, she has the right to seek judicial separation.
  • Bigamy – This implies that if a husband remarries when he is already married, both of his wives have the right to file a petition for judicial separation as long as the other wife is alive at the filing time.

Difference between Judicial Separation and Divorce

Even though the procedures for dealing with defended and undefended judicial separation and divorce are identical, there are some variances. Investigate them as follows:

  • Judicial separation does not end a marriage, but divorce terminates because the parties are no longer husband and wife.
  • The court does not have to evaluate whether the marriage is permanently closed or broken down while moving for judicial separation. However, it is necessary when filing the divorce petition.
  • Both parties can seek judicial separation at any time after the marriage; however, in divorce, the parties can only file for divorce after one year of marriage.
  • A judicial separation is a one-stage judgement procedure, whereas divorce is a two-stage judgement procedure.
  • Specific clauses in the Matrimonial Causes Act of 1973 apply to divorce but not to judicial separation applications, regardless of whether the separation duration is two or five years.
  • Wills judgments are not relevant in the event of judicial separation. If the parties are going through a divorce and one of the spouses dies, the existing spouse will not benefit from it, and the property will devolve.

Conclusion

Judicial Separation is a process in which the Court gives a couple seeking divorce one more chance to resolve their issues by living separately before initiating divorce proceedings. It allows for reflection and the resolution of marital problems and misunderstandings between the pair.

FAQs

What should a petition for Judicial Separation contain?

The marriage date and location.

According to their affidavit, the individual must be a Hindu.

Names, statuses, and addresses of both parties

Children's names, birth dates, and gender (if any)

Details of the litigation filed before the decree for judicial separation or divorce.

The evidence should show the basis for the judicial separation.

What is the process for legal separation in India?

Both spouses must file a divorce petition with the District Court simultaneously. Before submitting the petition, the married couple should ensure that they live separately for at least a year. After granting the petition, the parties must provide a statement.

Where are the grounds for judicial separation prescribed?

Section 13 of the Hindu marriage act 1955 prescribes the grounds for judicial separation. The grounds for judicial separation and divorce is the same under the act.

Who is entitled to file a petition for judicial separation in the court of law?

Any spouse in a marital relationship can file a petition for judicial separation under section 10 of the Hindu marriage act 1955.

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An aspiring lawyer and a first-year student at the Kalinga Institute of Industrial Technology.

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