Judicial separation is incorporated under Section 10 of the Hindu Marriage Act, 1955. This section deals with the judicial separation and the consequences that occur from it.
A marriage is not terminated by a decree of judicial separation. It merely puts the obligations of conjugal duties to an end. After the issue of a decree for judicial separation, neither of the spouses is under any obligation to cohabit with each other. This section also applies to the marriages solemnized before the enactment of this Act.
A decree of judicial separation can be obtained on the following grounds:-
- After the solemnization of marriage, the other party voluntary had sexual intercourse with any other person other than his or her spouse, or
- The petitioner has been treated cruelly by the other party, or
- The other party has ceased to be a Hindu by converting to another religion, or
- The petitioner has been deserted by the other party for a continuous period of not less than 2 years immediately presenting the presentation of the petition, or
- The other party has been suffering from mental disorder of such a kind that the petitioner cannot be expected to live with the respondent, or
- The other party has been suffering from incurable form of leprosy, or
- The other party has renounced the world and has entered any religious order, or
- The other party has been suffering from venereal disease and is in communicable form, or
- The other party is not heard to be alive for a period of 7 years or more.
The remedy of judicial separation is available in every case either the marriage was solemnized before the commencement of the Act or after the Act. As per the recent amendment in the Hindu Act, the grounds for divorce are also the grounds of judicial separation.
A decree of judicial separation puts an end to the obligation of cohabitation, even though there is no affect on the marital relationship. As soon as the decree is passed, the parties are relieved of their duty to live together and cohabit. Any act of cohabitation between the parties would put an end to the decree and the normal marital life is restored. When the decree of separation is in effect, the parties cannot remarry. In case of a remarriage by the parties, they would be liable for the offence of bigamy.
Judicial separation and divorce are different. The main difference between the both is that in case of divorce there is an end of relationship of marriage, which is not in the case of judicial separation. In case of judicial separation, marriage relationship stands superseded. A decree of judicial separation can be said to be a stepping stone to divorce.
After the changes made in the Hindu Marriage Act, 1955, the grounds of divorce and judicial separation have become very identical, therefore, the parties ideally opt for divorce instead of judicial separation. Judicial separation is granted with the object to see if there is any possibility that the parties to separation can live together peacefully after the separation or not. The grounds of judicial separation are not so serious in comparison to the grounds of divorce.
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