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.
What is 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.[i] In the case of Hrishikesh Talukdar v. Purabi Baishya[ii], the Guwahati High Court ordered a decree of divorce on the grounds of cruelty by the wife against the husband.
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. The grounds for a judicial separation are the same as a divorce and they are: cruelty, desertion, adultery, conversion, mental disorder, communicable disease, renunciation of the world or presumption of death of/by one of the parties to the marriage. However, if the person seeking judicial separation is a woman, the following grounds are also available to her[iii]: remarriage of the husband, rape, sodomy or bestiality by the husband or child marriage. Though the Hindu Marriage Act does not specify how long a judicial separation can last, Section 13 of the Act mentions that, if the separation has lasted for over a year, the couple can seek divorce.
In the case of Manisha Tyagi v. Capt. Deepak Kumar [iv], the husband had alleged cruelty by the wife and sought divorce which was granted by both the District Court and the High Court. However, the wife appealed to the Supreme Court and a single judge bench, on finding the lack of evidence proving cruelty, adopted the middle path and granted and order for judicial separation in the hope that the couple would find a way to reconcile.
Difference between a divorce and judicial separation
Though the grounds for judicial separation and divorce are the same, the two procedures are very different. Some of the difference are as follows[v]:
- Parties are still considered to be married even though they are judicially separated but after a decree for divorce is granted the marriage ends and both parties can enter into subsequent domestic relationships with other people.
- The process of judicial separation involves only one judgement, but the divorce procedure involves two judgements, one when the petition is filed, and one 6 months post the first judgement.
- When hearing a petition for judicial separation, the judges presume that the couple can reconcile and resume cohabitation but while hearing a petition for divorce, the judges are more concerned about the permanent breakdown of the marriage.
Recent trends of Adultery
Under Section 497 of the Indian Penal Code, adultery was criminalized and any man who engaged in sexual intercourse with another person’s wife could be punished for adultery with a prison term of up to 5 years. Women were exempted from punishment, but a married woman had no right to file a complaint against her husband for engaging in an adulterous relationship with an unmarried woman.
In the case of Joseph Shine v Union of India[vi], 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.[vii] As of 2019, adultery is no longer a criminal offence but it is still a valid ground for divorce or judicial separation.
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.
Edited by Pragash Boopal
Approved & Published – Sakshi Raje
[ii] Hrishikesh Talukdar v. Purabi Baishya, (2018), Matrimonial Application, 45 of 2017, (India).
[iii] Legal Views, Judicial Separation and Divorce in India, Vakilno1, (August 13, 2019, 8:02 PM), https://www.vakilno1.com/legalviews/judicial-separation-divorce-india.html.
[iv] Manisha Tyagi v. Capt. Deepak Kumar, AIR 2010 SC 1042, (India).
[v] Judicial Separation in India, Helpline Law, (August 13, 2019, 8:15 PM), http://www.helplinelaw.com/family-law/JUDISI/judicial-separation-in-india.html.
[vi] Joseph Shine v. Union of India, (2017), Writ Petition (Cr.) 194 of 2017, (India).
[vii]Disha Chaudhry, Joseph Shine vs. Union of India, Centre for Law and Policy Research, (August 14, 2019, 6:57 PM), https://clpr.org.in/litigation/decriminalisation-of-adultery-constitutional-challenge-to-section-497-of-the-ipc/.