Legal Guide

Difference Between Judicial Separation and Divorce

by Nikky Jha · 3 min read

difference between judicial separation and divorce

The institution of marriage is essential to Indian society. No matter what faith someone practices, marriage is an essential component of all religions. Therefore, every young Indian’s life now revolves around the idea of marriage. Since marriage was traditionally viewed as sacrosanct in the past, the majority of faiths vehemently forbade the idea of divorce or separation. 

Since marriage is the foundation of Indian society and values, most faiths neither support nor encourage divorce. Divorce is not as simple to get in India as it could seem because marriage is frequently the focal point of an Indian’s life. Hence the difference between judicial separation and divorce becomes essential to be understood. 

The legal procedure might take a while, and the couple may be quite hesitant because of societal pressure to maintain a “happily married existence.” In recent decades, there has been an increase in the divorce rate in western nations. However, there is a thin line of difference between judicial separation and divorce.

Judicial Separation 

To understand the difference between judicial separation and divorce, we must first know what judicial separation is. The legal procedure of judicial separation refers to the formal dissolution of marriage prior to divorce. Simply put, judicial separation is a circumstance in which the partners are separated for a certain amount of time with their consent. 

In a judicial separation, both the husband and the wife have the opportunity to give their marriage one more try before starting the divorce process. This is a major difference between judicial separation and divorce.

In order to keep their marriage intact, both parties will live apart for a certain amount of time, as set by the court. Additionally, throughout this period, the husband and wife will both maintain their separate living arrangements while still maintaining their legal position as a married couple.

A petition for judicial separation may be filed under Section 10 of the Hindu Marriage Act, 1955, by any party to a marriage, whether it was consummated before or after the Act’s inception. The parties are not required to live together even if a judgment is made in their favor. 

However, some obligations and privileges related to marriage still exist. During the separation, they are not permitted to be remarried. They are free to live apart from one another. Throughout the separation, rights and responsibilities are still suspended.

Divorce 

Now to further understand the difference between judicial separation and divorce, let’s look at what the concept of divorce is. In a divorce, the parties lose their status as husband and wife. The marriage is ended through divorce, and all shared rights and duties are also canceled. The couple is free to be remarried.

Divorce is when a couple decides to end their marriage. The legal procedure to end a marriage is known as divorce. As a result, this is also known as the “dissolution of marriage.” Under numerous distinct rules unique to that particular faith, there are varied procedures and justifications for getting a divorce.

The concept of divorce is important to be understood in order to understand the difference between judicial separation and divorce.

Grounds for Divorce 

Now that we are aware that there is a difference between judicial separation and divorce. Let’s have a look at the grounds for divorce. Certain reasons for divorce are outlined in Section 13 of the aforementioned Act. In addition, under section 13 B, a divorce may now be obtained by mutual consent. The following list of grounds for divorce has been discussed:

  • Adultery – Adultery is defined as sexual activity between a man and a woman who are not married to one another, but at least one of them is married to someone else. 

Therefore, in cases when a man is committing the aforementioned crime, the other person must not be the offender’s spouse but rather the spouse of another man, and the offender must be aware of or have cause to suspect this. 

Additionally, the liaison must be consented upon. Since adultery is very private conduct that may be carried out in the most discrete of ways, it may be difficult to demonstrate it by direct proof. As a result, some conditions make it feasible to deduce this basis.

  • Desertion – The spouse has the right to file for divorce due to desertion. This indicates that the petitioner had to have been abandoned for a minimum of two years in a row before filing the petition with the court. A desire to desert and actual separation would be the two prerequisites for desertion.
  • Cruelty – Cruelty might be cited as a reason for divorce. Cruelty is defined as behavior that endangers life, health, or limb in some way or gives rise to a justifiable fear that it could. Physical and mental abuse are both considered forms of cruelty. It might be tactful or harsh. It can be done with words, actions, or even just quiet.
  • Conversion – The other party may seek divorce on the grounds of the other person’s conversion to another faith or ceasing to be a Hindu. Therefore, for one party to seek a divorce, for this reason, the other party must forsake Hinduism and convert to a different faith.
  • Insanity – The other party may file for divorce on such grounds if the other party cannot live with the other due to the other party’s unsoundness of mind (incurable) or mental disease (ongoing or intermittent). The individual seeking a divorce on such grounds is responsible for establishing insanity.
  • Leprosy – The other spouse may file for divorce on this basis if the other spouse has an incurable, severe form of leprosy. 

Prior to The Marriage Laws (Amendment) Act, 1976 (hereafter referred to as “the 1976 Amendment”), the condition of leprosy had to have existed for three years; however, this is no longer a requirement, and the duration is immaterial.

  • Venereal Disease – A party may file for divorce if the other party has a venerable disease, a communicable kind.
  • Renunciation of the World – Only under the purview of Hindu Law is this odd cause for divorce permissible. When one spouse joins a religious organization to abandon the world, which is equivalent to civil death, one spouse may file for divorce on this basis.
  • Presumption of Death – The other spouse may petition for divorce for this reason if the other spouse has not been heard from as being alive by those who would normally know of him as being alive (for example, his relatives or friends) for a period of at least seven years.
  • Decree of Judicial Separation – A decree of divorce may be awarded to either party once the judicial separation decree has been issued and there has been no cohabitation between the parties for at least a year following the decree’s issuance. But it’s important to understand that neither party has an absolute claim on this right. This highlights the difference between judicial separation and divorce.
  • Decree of Restitution of Conjugal Rights – A petition for divorce may be filed by either partner in cases where there has been no restoration of conjugal rights for at least a year from the date of the aforementioned judgment.
  • Either party may file for divorce in cases where there has been no restoration of conjugal rights for at least a year following the passing of the aforementioned judgment. This is another ground that highlights the difference between judicial separation and divorce. 

Grounds for Judicial Separation 

Now that we know the grounds for divorce, we understand a little more about the difference between judicial separation and divorce. Let’s move on to the grounds for judicial separation. A couple’s whims and desires cannot dictate whether judicial separation is granted. 

There are several criteria that must be met in order to grant judicial separation. The reasons for judicial separation are relatively similar to those that are given for requesting a divorce, according to the Hindu Marriage Act.

As a result, any of the grounds listed in sections 13 (1) and 13 (2) of the Hindu Marriage Act may be used by a party seeking a judgment of judicial separation. In reality, the Special Marriage Act of 1954 adopted a similar attitude.

The aforementioned Act also goes a step further and offers a second justification for judicial independence. According to Section 23 (1) of the Special Marriage Act, any spouse may submit a petition for judicial separation on the basis of the other’s failure to comply with a court order restoring their conjugal rights. 

The court may then grant the decree if it is pleased with the arguments and information presented in the petition. It is important to understand that Muslim law has no opportunity to achieve judicial separation. 

Additionally, adultery, cruelty, or desertion may be grounds for requesting an order of judicial separation, according to section 22 of the Divorce Act 1869. However, there is some similarity between the grounds for judicial separation and divorce. There is a significant difference between judicial separation and divorce.

Key Difference between Judicial Separation and Divorce

In order to get a deeper understanding of the difference between judicial separation and divorce, let’s look at the following key difference between judicial separation and divorce.

  • Judicially separating yourself from your spouse can be done at any point after the wedding, but you can only get a divorce once you’ve been married for a full year.
  • While divorce permanently ends a marriage, judicial separation offers a temporary reprieve from marital responsibilities and duties.
  • Divorce is a two-stage procedure, whereas judicial separation is a one-step process.
  • In cases of judicial separation, the court grants it when the necessary conditions are met; however, in cases of divorce, the court must first order a reconciliation before issuing a divorce decree.
  • Divorce may also be granted on the basis of judicial separation.
  • The parties to a legal separation can contemplate and ultimately repair their marriage, although this is not possible in a divorce.
  • Section 10 of the HMA, 1955 defines judicial separation, whereas Section 13 of the Act discusses divorce.

The aforementioned are the key difference between judicial separation and divorce. 

Conclusion

There may be a lot more negative impacts of divorce increase than thought. Young couples nowadays appear to have embraced the idea of a “live-in relationship.” The rise in divorce rates is the most prevalent cause of the explosion in live-in relationships and the consequent drop in the rate of marriage. However, there is a difference between judicial separation and divorce.

The younger generation has developed a negative attitude about the idea of marriage due to their dread of “finally being separated via a drawn-out legal procedure of divorce.” As a result, it is now crucial for the average person to comprehend the many legal terms and processes that pertain to marriage and divorce, such as the difference between judicial separation and divorce.

To know more about the difference between divorce and judicial separation, get online legal advice and consult a divorce lawyer.

A divorce is the process of termination of marriage, whereas a judicial separation refers to the formal dissolution of marriage prior to divorce. To know more about the difference between divorce and judicial separation, consult a divorce lawyer.

Nikky Jha

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Nikky Jha

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