Article by Muskan Singh at lexcliq

Judicial seperation

Judicial seperation is a period that comes before divorce. It is a period of separation mandated by the court before the divorce proceedings can be started. It is a provision under Indian law that allows a married couple to stay away from eachother without changing their legal marital status, to provide them enough time and space to take a decision for them and give their marriage a second chance rather ending up the martial ties between husband and wife. It is a sort of last resort before the actual marital break up of a couple i.e. divorce.

Hindu marriage act of 1955, section 10 reads as 

“A decree for judicial seperation can be sort on all those grounds on which decree for dissolution of marriage i.e. divorce can be sort. Hence, judicial seperation can be had on any of the following grounds – adultery, cruelty, desertion, apostacy ( conversion of religion ), insanity, incurable form of leprosy, renunciation of world by entering in any religious order, or presumption of death. For wives other grounds are remarriage or past marriage of spouse which was solemnised, Marital rapes, sodomy, or bestality by husband. Unless a divorce request isn’t filed, the question for granting judicial seperation doesn’t arise. The court shall therefore strictly follow the rules and based on these grounds proceed with divorce procedures by granting judicial seperation to couple so that atleast they get a final call before they move on from eachother.

The need of this act under hindu marriage act section 10, is because of stress, anxiety and other reasons which cause disturbance or disinterest in a healthy relationship which eventually leads to separation. It is basically to fix things before it’s to late, to make them realise their mistakes and faults, to cool down their emotions so that they can make the right choice for themselves. Once the order of judicial seperation gets approved by the court the couple can seperately live their lives without ending their marriage. Though section 10 of Hindu marriage act does not provide any fix time of how long can it last but section 13 of the act provides that If the couple exceed a time limit of one year and still do not wish to stay together or give their relationship a chance after the judicial seperation was passed, then they may get divorce on this ground itself. But it is given only after expiry of one year tenure of judicial seperation and in no case earlier to it. The simple reason behind this is one year time is sufficient and long time to resolve issues and reconciliation or arrive at a decision whether to be with eachother or not. If they feel to overcome their disputes within the provided time, then their is no delay for proceeding with legalities of the divorce if the relationship has long expired.

Another question that arise before divorce is of maintenance i.e alimony. Even if the judicial seperation passed in favour of husband maintenance is still awarded in favour of wife and judicial seperation is no defence to claim alimony under hindu marriage act.

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