Marriage is nothing but a union of two souls and bodies. Marriage ensures a healthy and a happy relationship between the husband and the wife. As per the old traditions, Marriage was considered to be ‘Sacrament’, as a very holy union of two contractual bodies, and it was not meant to be broken by any means. It was an indissoluble union.
But with advancement in technologies, marriage became an exclusive union that gave birth to polygamy, divorce, etc., where a husband and a wife can part their ways if they are not able to live together as husband and wife.
What is Judicial Separation?
Under Section 10 of the Hindu Marriage Act,1955, Judicial Separation is defined as:
- Either party to a marriage, whether solemnized before or after the commencement of this Act, may present a petition praying for a decree for judicial separation on any of the grounds specified in sub-section (1) of section 13, and in the case of a wife also on any of the grounds specified in sub-section (2) thereof, as grounds on which a petition for divorce might have been presented.
- Where a decree for judicial separation has been passed, it shall no longer be obligatory for the petitioner to cohabit with the respondent, but the court may, on the application by petition of either party and on being satisfied of the truth of the statements made in such petition, rescind the decree if it considers it just and reasonable to do so.
In simple words, Judicial Separation is different from Divorce. Divorce puts the relationship to an end and all the rights and obligations of both the spouses cease to exist. However, judicial separation merely suspends marital rights and duties for a specific period.
The court gives them time to think about their relationship as a chance to reconcile. During the period of separation, they will still be husband and wife. Law gives both the spouses to rethink while giving them their space to save them from the last option of Divorce.
The spouse can claim for a Judicial Separation by filing a petition and if the petition is taken into consideration, they cannot co-habitat. The grounds for the Judicial Separation are as same as given for the filing of Divorce i.e., adultery, cruelty, etc.
Effect of Separation:
- They are not allowed to cohabit with one another.
- If either party dies in between the separation period, all the property will devolve as if the other party is dead.
- Marriage between them is still existing so they cannot remarry
- If a woman is in judicial separation, the husband cannot do sexual intercourse with her without her consent.
In the case of Subbarama Reddiar vs. Saraswathi Ammal,
The Madras High Court exhaustively discussed the nature and scope of Judicial Separation and has observed the grounds as specified under Section 13 of the Act. If anyone asks for it, the Court may grant it if the ground is proofed.
Therefore, the ground of Judicial Separation in its totality gives the aggrieved husband or wife a chance to fix a broken marriage and gives them an opportunity to concern with their matrimonial bond. The Act does not allow to separate without any valid and legal reason. The idea behind it is very noble and has a great impact on our society.