When the problem starts arising in a marriage, if not resolved timely and sensibly, it turns worse over a period of time. In such a condition, many times, the couple opts to sort out the root causes of those problems by discussing with each other or taking the help of an experienced family members generally parents or grandparents. While most couples take legal ways not to sort out the problems in between but to end their relationship and move on.
In the legal process of separation, an advocate first describes all the pros and cons of a legal process and how long will it take in the dissolution of their marriage, etc. Post this stage two types of separation come into play; the first is Judicial Separation while the other one is Divorce, which we all are well aware of. People often confuse judicial separation with divorce but both are two different things mentioned in the Indian System of Law.
The Hindu Marriage Act of 1955 provides the legal framework for seeking and obtaining judicial separation and divorce. Though these two terms seem to be similar, their core aim is quite different.
Divorce
Divorce is a legal process that aims to dissolve a marriage and both parties are no longer bound to each other after divorce, in the eyes of law. Section 13 of the Hindu Marriage Act, 1955 deals with the provisions related to divorce.
Section 13 (1) of the Hindu Marriage Act states, that any marriage, whether solemnized before or after the commencement of this Act, may be dissolved by a decree of divorce upon presentation of a petition by either spouse on the following grounds:
- Adultery: If the other party has had voluntary sexual intercourse with any person instead of their spouse after marriage.
- Cruelty: If the other party has done cruelty after the solemnization of the marriage.
- Desertion: If the other party has deserted the petitioner for a constant period of not less than two years immediately before the presentation of the petition.
- Mental disorder: If the other party has been affected with any incurable mental disorder continuously to such an extent that the petitioner can’t reasonably live with the respondent.
- Conversion: If the other party has ceased to be a Hindu by converting to any other religion.
- Virulent and Incurable Leprosy– The spouse has been suffering from leprosy of a virulent and incurable nature.
- Communicable venereal disease– The spouse has been afflicted by a communicable form of venereal disease.
- Renunciation– The spouse has chosen the path of renunciation.
- Presumption of death– If the Spouse has not been heard of as being alive for a period of seven (7) years or more by those people who would have naturally heard that the person is alive.
Moreover, Section 13 (2) of the Hindu Marriage Act, 1955 provides some other grounds to the wife for obtaining divorce. They are;
If a husband had remarried or had another wife before the introduction of this Act and the other wife is still alive at the time of the second marriage of the husband with the petitioner, then the petitioner can present a petition but only if the wife is still alive at the time of the filing of the petition.
The husband has been guilty of rape, sodomy, or bestiality, since the solemnization of the marriage.
While receiving maintenance through a decree or order, there has been no cohabitation for at least a year.
A marriage solemnized before the age of 15 can be repudiated by the wife post-attaining of that age but before turning 18.
How to seek divorce on mutual consent?
In the process of obtaining a divorce, filing a divorce petition is the first step. The divorce petition should be filed at a Court in the jurisdiction where the couple’s marriage was solemnized. and the court where the wife currently resides. The couple can apply for the same if the husband and wife have been living separately for at least a year.
- Both parties have to file a joint petition for dissolution of marriage in their respective Family Court. The couple also has to ensure that they have been living separately for over a period of not less than a year.
- The court would observe the petition and examine the presented documents closely. Post examination of the case, the court tries to resolve the differences between the parties. If it finds it not suitable for the parties to be together, it may continue with the proceedings.
- The Court passes an order for recording the statements on oath.
- After the statements of the parties get recorded, the court grants the first motion. In this, a six months period is given to both the parties as a ‘cooling off’ period. The aim behind giving this period is to allow the couple to give themselves another chance of reconciliation if any scope is left for it.
What is a legal separation/Judicial Separation?
In the legal process of Judicial Separation, a Court grants a decree of separation to the parties, which legally separates the couple but doesn’t ensure dissolution of the marriage. It is the suspension of conjugal rights or marital obligations for a limited period. Though it allows separation, its core objective is exploring the possibilities for re-union between husband and wife.
How to get Judicial Separation?
In order to seek Judicial Separation, the parties have to follow the legal process mentioned in the Legal books.
Either of the spouses can file a petition in a district Court to seek Judicial Separation under Section 10 of the Hindu Marriage Act, 1955. Either party needs to fulfill the below mentioned conditions to file a petition for judicial separation;
- The Marriage of the parties must have been duly solemnized as per the provisions mentioned in the Act.
- The jurisdiction of the court should be accessible easily by the respondent where the aggrieved party has filed petition.
- There is no obligation of cohabitation after marriage before filing a petition. In other words, a couple or either of the party can apply for Judicial Separation at any time after marriage.
Let’s understand the key differences between Judicial Separation and Divorce with the help of a comparison table shown below;
| Grounds | Judicial Separation | Divorce |
| Definition | Suspension of conjugal rights or marital obligations for a specific period of time, can be called as judicial separation. | Divorce is a process by which the marriage is formally comes to an end. |
| Defined Under | Section 10 of Hindu marriage act, 1955 | Section 13 of Hindu marriage act, 1955. |
| Main Objective | Granting an opportunity for re-union in the marriage. | Dissolve the marriage. |
| Minimum time for filing an application | Can be filed at anytime after the marriage. | Can be filed after a period of 1 year, rarest in rare cases being an exception for same. |
| Effect on Legal Status | Marital status remains maintained. | Dissolve the marital status. |
| Prohibited on Marriage | Both the parties are not allowed to marry during the process. | The parties are allowed to marry as per their choice. |
| Right to Inheritance | Remain enforced | Ends with the granting of the ‘decree of divorce’. |