Judicial Seperation

It is an instrument formulated under law to grant some time for introspection to both the husband and wife in a troubled marriage. Law allows an opportunity to both the husband and the wife to think about the continuance of their relationship while at the same time directing them to live separate, thus allowing them the much needed space and independence to choose their path.

Judicial separation is a sort of a last resort before the actual legal break up of marriage i.e. divorce. The reason for the presence of such a provision under Hindu Marriage Act is the anxiety of the legislature that the tensions and wear and tear of everyday life and the strain of living together do not result in abrupt break – up of a marital relationship. There is no effect of a decree for judicial separation on the subsistence and continuance of the legal relationship of marriage as such between the parties. The effect however is on their co-habitation. Once a decree for judicial separation is passed, a husband or a wife, whosoever has approached the court, is under no obligation to live with his / her spouse.

Section- 10 of the Hindu Marriage Act, 1955 states that a decree for judicial separation can be obtained on all those grounds required to obtain divorce.

Grounds for judicial separation :

  • Adultery

  • Cruelty

  • Desertion

  • Converted to another religion

  • Insanity

  • Virulent and incurable form of leprosy

  • Venereal disease in a communicable form

  • Venereal disease in a communicable form

  • Has not been heard of as being alive for seven years

Moreover, if the wife is applying for judicial separation, then the following grounds are also available to her :

  • Remarriage or earlier marriage of the husband but solemnized before the commencement of Hindu Marriage Act, 1955, provided the other wife is alive at the time of presentation of petition for judicial separation by the petitioner wife.

  • Rape, sodomy or bestiality by the husband committed after the solemnization of his marriage with the petitioner.

  • Non-resumption of co-habitation 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.

  • Solemnization of the petitioner wife’s marriage with the respondent husband before she had attained the age of 15 years provided she had repudiated the marriage on attaining the age of 15 years but before attaining the age of 18 years.

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