What is Judicial Separation and Divorce?
Judicial separation is a legal process that allows married couples to formally
separate while remaining legally married. It offers an alternative to divorce and is
often sought when couples want to live apart but do not wish to end their marriage
entirely. It can be filed at any time after marriage and if the grounds are satisfied, a
decree of judicial separation is granted.
This decree results in a temporary suspension of the marital relationship and the
parties cannot remarry. Judicial separation may serve as a precursor to divorce in
some jurisdictions and can provide an opportunity for reconciliation. The right to
inheritance remains intact for both parties under judicial separation in family law.
Divorce is a legal process that ends a marriage entirely. It can only be filed after
one year of marriage and the process involves a two-step judgment, with attempts
at reconciliation before granting a divorce decree. Once a divorce is finalised, the
marriage legally terminates and both parties are free to remarry. Divorce grounds
typically include living in an adulterous relationship or meeting specific criteria as
per the applicable legislation. The right to inheritance associated with the former
spouse ends with divorce.
Under Section 10 of the Hindu Marriage Act, 1955, either party to a marriage,
whether the marriage was solemnized before or after the commencement of the
Act, has the legal right to file a petition for judicial separation. Once a decree in
favour of the parties is granted, they are not legally obliged to live together or
cohabit as a married couple. While they are permitted to live separately, some
matrimonial rights and obligations still persist during this separation. It’s important
to note that during the period of judicial separation, neither party can remarry.
The rights and obligations that continue to exist between the separated parties are
effectively suspended during this period. The grounds for seeking judicial
separation are essentially the same as those for obtaining a divorce, as outlined in
Section 13(1) of the Act. These grounds typically revolve around issues such as
cruelty, desertion, adultery, or other legally recognized reasons that render the
continuation of the marriage untenable.
Divorce After Judicial Separation
After a year of living apart, a couple who has acquired a judicial separation may
file for Divorce based on the grounds. Similar to filing for Divorce without a
judicial separation, the process of filing for Divorce after one is the same.
Whether the couple acquired a judicial separation before filing for Divorce may
have an impact on the outcomes of the Divorce, such as the distribution of
property, assets and obligations. For instance, the court may consider the length of
the separation when allocating property and assets and any alimony or child
support that was paid during that time.
Scope of Judicial Separation and Divorce
In the case of Vinay Khurana v. Shweta Khurana (2022), the Delhi High Court
elucidated the extent of judicial separation and divorce. The court emphasized that,
in accordance with the provisions of the Hindu Marriage Act, there exists a
substantial disparity between judicial separation and divorce.
A decree of judicial separation does not terminate the marital relationship but
merely results in the legal suspension of conjugal rights, while a divorce decree
conclusively dissolves the legal bond between the husband and wife, liberating
them from their marital duties and obligations. Importantly, the court highlighted
that a decree of judicial separation can be revoked by the same court that issued the
decree, but a divorce decree can only be annulled through a judicial order, typically
following an appeal or a review process. In cases where a divorce order is granted
ex parte, it may be subject to reversal through a formal application filed to set aside
the ex parte decree.
Aspect Judicial Separation Divorce
Time for Filing Petition Any time after marriage After one year of marriage
Stages of Granting a
Single stage judgment Two-step process (reconciliation, then divorce)
Decree
Temporary suspension of
Effect Termination of the marriage
marriage
Remarriage Not allowed Allowed after divorce decree
One of the grounds for
Ground for Divorce N/A
divorce
Basis for Granting the Living in an adulterous relationship or specific
Single instance of adultery
Decree grounds as per legislation
Reconciliation Possible Not possible
Right to inheritance remains
Right to Inheritance Ends once the divorce decree is granted
enforced
