Mohi | Updated: May 22, 2019 | Category: Matrimonial
Procedure and Implication Related to Judicial Separation
A happy marital life is a result of faith, unconditional love, passion, belief, and willingness of couples to stay together and help each other and stand with each other in each phase of life. But when due to lack of interests, misunderstandings, lack of compatibility, unfaithful toward each other and many more reasons, happy life turn into ugly. Due to these kinds of unfortunate situation couple take help of the court and proceed towards divorce. So, Judicial separation is a way to provide opportunities to the couple to think about their relationships and continuance of their marriage, and at the same time, they live separately which help them to choose their path independently. A complete guide on Procedure for Judicial Separation in India.
The provision related to the Judicial Separation is mentioned under section 10 of the Hindu Marriage Act, 1955, wherein both couple get a chance to rethink about their marriage, before going on with the divorce proceedings. Under the decree of Judicial Separation, couples live separately for a , which gives them adequate space, independence and time to rethink about their marriage. During this period, both parties or husband and wife still have the same legal status of being husband and wife, and at the same time, they live separately also.
Grounds for Judicial Separation in India
These are the grounds on the basis of which Judicial Separation can be granted:
- Cruelty – if either of the spouse or both are cruel toward each other and harassment is there whether its, mental, verbal, or physical.
- Desertion –If any spouse has deserted the other spouse for a continuous period of two years without any reasonable ground can go to the court for judicial separation.
- Adultery – when either of the spouses cheated the other one, in this case on the ground of adultery, they can move for judicial separation.
- Conversion of religion – That any of the spouses is ceased to be Hindu by conversion to another religion, in this case, Judicial Separation petition can be moved into the court.
- Diseases- If any of the spouses is suffering from Leprosy, HIV or any vulnerable or contagious disease.
- Insanity or abnormality – If any of the spouses is of unsound mind, and then it’s a strong ground for Judicial Separation.
- Renunciation of the world- If any of the spouses renounced the world, then the other spouse can go for judicial separation.
- Rape, sodomy or bestiality- if the husband is guilty of rape, sodomy etc.., after solemnization of marriage, the wife can file a petition in the court for the matter of Judicial Separation.
- That the marriage was solemnized before the wife attained the age of 15 years and repudiated the marriage before she attained 18 years of age.
- Non-resumption of cohabitation 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.
Difference between Judicial Separation and Divorce
| Judicial Separation | Divorce |
| It does not terminate a marriage | It terminates marriage |
| During proceeding for judicial separation, the court consider that the marriage has not been broken | But in divorce, it’s vice versa |
| Either of spouses can file a petition for judicial separation after marriage. | It can be only filed after one year of marriage |
| It goes through one stage Judgment procedure. | It goes through the two-stage judgment process |
| A single instance of adultery sufficient for Judicial Sep. | Living in an adulterous relationship necessary. |
| There is a possibility of reconciliation. | There is no possibility of reconciliation |
| Cannot remarry after the passage of decree. | Can remarry once decree in favour of divorce is passed. |
| It’s kind of pre-stage before proceeding for divorce | Its bring the end of a marriage |
| Judgments with respect to Wills are not applicable in case of Judicial separation | It is applicable in the process of divorce. |
Where to file petition for Judicial Separation?
A petition for judicial separation can be filed in a district court within the jurisdiction of whose:
- The marriage was solemnized.
- The current address of the respondent
- Last address where both lived together as a married couple
- The petitioner is residing, in case the respondent is an outside territory of India.
All proceeding related to Judicial Separation is regulated by the Civil Procedure Code under Section 21 of the Act.
Required documents and points which should be in petition
Every petition for Judicial Separation under Order VII, Rule 1 of CPC, must contain below mentioned points and documents:
- Date and Place of marriage should be mentioned
- The affidavit shall be attached with the petition as proof of religion as this applies in case of Hindu only
- Name status and domicile of both party shall be mentioned.
- Need to mention the name of children out of wedlock, their gender and age
- Description of facts
- The ground on which the petition for judicial separation is being filed
- Evidences shall be attached if its matter of cruelty, communicable diseases etc.…
Court Procedure for Judicial Separation
- Petition for Judicial separation shall be filed with requisites documents attached.
- Once a petition has been filed, the court will pass summon order for the other party.
- Both parties are required to furnish evidences to strengthen their claim.
- Arguments will be done, and on the basis of evidences and arguments, a decree will be passed by the court.
- The decision can be challenged in a higher court.
