As per our Vedas, marriage is a life-long companionship of two people. Hindu marriage is considered as one of the most important sacraments. As per Hindu marriage Act , 1955 a valid marriage if following conditions are satisfied:
- neither party has a spouse living at the time of the marriage
- at the time of the marriage, neither party,-
- is incapable of giving a valid consent of it in consequence of unsoundness of mind; or
- though capable of giving a valid consent has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or
- has been subject to recurrent attacks of insanity or epilepsy.
- the bridegroom has completed the age of twenty one years and the bride the age of eighteen years at the time of the marriage.
- the parties are not within the degrees of prohibited relationship unless the custom or usage governing each of them permits of a marriage between the two.
- he parties are not Sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two.
As per our tradition marriage is life-long commitment so divorce and separation have always been a topic of discussion. But Hindu marriage act does provide provisions for divorce as last resort but before this, it tries to maintain sacrament of marriage. So the concept of judicial separation was introduced so as to give chance to both parties to reconcile and save their marriage.
Section 10 States that :
- 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.
As per section 13(1) of the act the following grounds are available for getting decree of judicial separation by either of the spouse :
- conversion of religion,
- unsoundness of mind.
And provision available to only wife under section 13(2) of the act for getting decree of judicial separation are if husband is guilty of rape, sodomy and if wife was nit major at time of the marriage and after attainment of the age don’t want to be married.
Difference between Judicial Separation and Divorce
|Termination||It doesn’t terminate the marriage.||It Does terminate the marriage.|
|Time limit||Petition for judicial Separation can be filed any time after the marriage .||Petition for Divorce can only be filed after 1 year of marriage|
|Judgement process||Judicial Separation goes through one stage judicial procedure.||Divorce Petition goes through two step judicial procedure.|
|Provisions In Matrimonial Causes Act 1973||Provision of matrimonial act 1973 is not applicable to judicial separation||Provision of matrimonial act 1973 is not applicable to divorce|
Procedure for Judicial Separation
Any Spouse can file for judicial separation under section 10 of the act in the district court of the if the following condition are satisfied:
- The marriage is a valid marriage under Hindu marriage act
- The respondent should be residing in the jurisdiction of the court where the petition is being filed
- The husband and wife should be living together for a particular period of time
The petition should be filed according to Order VII Rule 1 of the Civil Procedure Code, 1973 and must contain:
- the name of the Court in which the suit is brought;
- the name, description and place of residence of the plaintiff;
- the name, description and place of residence of the defendant, so far as they can be ascertained;
- where the plaintiff or the defendant is a minor or a person of unsound mind, a statement to that effect;
- the facts constituting the cause of action and when it arose;
the facts showing that the Court has jurisdiction;
- the relief which the plaintiff claims;
- where the plaintiff has allowed a set-off or relinquished a portion of his claim, the amount so allowed or relinquished; and
- a statement of the value of the subject-matter of the suit for the purposes of jurisdiction and of court-fees, so far as the case admits.
Although act doesn’t define the period of decree for judicial separation under section 10 but after one of judicial separation it could be ground for divorce. The couple after getting the decree for judicial separation any time file rescind of the decree if they decide to reconnect with each other also if court is satisfied with the statement under section 10(2) of the act it has power to rescind the decree.
Judicial separation is one step before the divorce which is given to husband and wife to save their marriage as marriage is treated as sacrament and our legislature always try to save it from getting terminated permanently. So Judicial Separation is a great provision of the act to provide couple last chance to resolve there martial issues and save their marriage.