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JUDICIAL SEPARATION

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INTRODUCTION

We all want a break from our daily routine work, as we get bored with daily routine same as the concept of judicial separation works. Relationship between men and women results in marriage if a couple doesn’t want anymore to live together due to many reasons they can get separate by different ways like judicial separation and divorce.

Divorce became very common in today’s world, more than marriages, divorces are taking place. Today’s generation does not want to listen to anyone even their spouses, they want to live their life independently according to their choice that is the main reason for a number of divorces taking place.

Still in our country divorce is considered socially barred sometimes couples neglect their problems due to society and the pressure of family. Marriage is a natural phenomenon in the same way divorce is also a natural phenomenon. Now if a couple wants to get separate they can get separate, that’s not a big deal. Couples of today’s generation know their rights and duties very well and also know the process to get separated that’s why they easily get separated from their partners.[1]

JUDICIAL SEPARATION

Judicial separation is a concept of legally getting apart when couples do not want any further to live together. Under judicial separation, time is given to couples to self-analyse their disturbed married life. Court gives time to rethink about their separation whether they are 100% sure to get separated or not. In judicial separation, the law instructs couples to leave separate and to stop sexual intercourse during that period.

The substitute of divorce is judicial separation, spouses get time to resolve their disputes, issues, problems, make their efforts so that they can get success in saving their married life as judicial separation is the only last option after this spouse cannot live together again and continue their married life. The status of legally married couples does not take away by judicial separation, Indian legislature has adopted this provision because under Hindu law marriage is Deemed to be a ‘sacrament’ to prevent the breakdown of marriage is the duty of the court.[2]

AGREEMENT OF SEPARATION

Agreement of separation takes place after marriage, partners get separated with their consent and without the interference of Court while in judicial separation court gives a time to live separate for a certain period of time. Partners get separated without filing a divorce petition. In our country, the agreement of separation is deemed to be against public policy, to such agreements courts do not give any priority.

Maintenance is the most important factor in agreement, and it should be designed very carefully. The amount of maintenance depends upon the financial condition of a person, the husband gives maintenance to his wife. Besides maintenance division of property is also the most important factor of agreement of separation. Property is divided between partners, property can be movable (like a car, jewellery) and immovable (like a house)

REASONS FOR JUDICIAL SEPARATION

Partners can file a petition for judicial separation under section 10 of the act, there can be several reasons why partners want to get separated.[3]

  1. Adultery:- It is defined in [section 13(1)(I)]. In adultery, either husband or wife had sexual intercourse with any other person after their marriage not with their his/ her spouse. A discontented party can allege for consolation.

In the case of Ravathi vs Union of India[4], the court said that according to Section 497 of the Indian penal code[5] both husband and wife cannot charge each other for contaminating the sanctity of marriage by the claim of adultery.

  1. Cruelty:- Defined in [section 13(1) (i-a)] when either of couple harms his or her wife, causes any physical or mental injury then the sufferer can file a suit against him or her based on cruelty. In the case of Shyamsundar v Santadevi, the wife was distressed by her husband’s relatives and the husband also had not taken any steps to protect his wife. Court held that the husband had neglected to protect his wife intentionally which amounts to cruelty.
  2. Desertion:- defined in [section 13(1) (i-b)] if spouse left his wife or husband without the knowledge of the sufferer for a period of two years before filing the petition either by husband or wife then sufferers have the right to claim relief of judicial separation.
  3. Conversion:- Defined in [section 13(1) (ii)] either husband or wife converted into any other religion than the aggrieved party can file a suit for judicial separation.
  4. Unsound mind:- Defined in [section 13 (1) (iii) ] that either husband or wife is suffering from mental illness and it’s difficult to live with an unsound person, then sufferer can claim relief from judicial separation. In the case of Anima Roy V Probodh Mohan Ray (AIR 1969),[6] one of the partners is suffering from mental illness after completing two months of their marriage but the doctor was not able to find the exact time of illness the spouse is suffering from, the court said that the disease of spouse was not proved at the time of marriage.
  5. Leprosy:- defined in [section 13 (1) (iv) ] if any of the spouses is suffering from a disease which cannot be cure such as leprosy then the sufferer can file a petition for judicial separation.
  6. Venereal Disease:- defined in [section 13 (1) (v) ] if any of the spouses is suffering from communicable disease and it was not known before marriage then sufferer can file a petition to get separate.
  7. Civil Death:- it is defined in [section 13(1) (vii)] if any spouse is not found for seven years and relatives have also not heard anything about his or her then it is assumed that the person has died and the aggrieved party can file for judicial separation.

There are some other reasons on which a wife can file a petition for Judicial separation

  1. If the husband marries more than one wife.
  2. Sexual intercourse between the couples has not been resumed for 1 year
  3. If couples get married at the age of 15 years or before puberty.
  4. If the husband has the charges of rape.

For filing the petition for judicial separation the following essential must be there:-

The petitions must be filed in the district court where the marriage was solemnized and where the couple resides currently.[7]

  1. Basic information of the partners.
  2. Basic details of issues faced by partners.
  3. The date on which couples get married.
  4. The place where marriage was solemnized.
  5. The present situation of the partner’s.
  6. What is the relief claimed by a spouse?
  7. Residential address of partners.
THE DISTINCTION BETWEEN DIVORCE AND JUDICIAL SEPARATION
  • Marriage is not terminated in judicial separation on the other hand marriage gets terminate after divorce.
  • Spouses can file suit for judicial separation at any time after their marriage but in divorce can file suit after the completion of one year of their marriage.
  • Judicial separation is a single-stage judgement procedure while a divorce is a dual-stage procedure.
  • In divorce, some provisions must be followed written in Matrimonial Causes Act,1973[8] but no provision to be followed in judicial separation.
  • In judicial separation, partners cannot marry any person in a decided period of time whereas after divorce person can marry anyone they want.
  • Time is given to settle the disputes by getting separated to save their marriage but in divorce, no such time is given to partners.

CONCLUSION

It can be concluded that when there is a conflict between partners they can separate their way. There can be many reasons for separation. Judicial separation is more preferred than divorce. Terms and conditions of judicial separation spend upon personal laws. Minimum one year is given to couples to settle their disputes. While filing petitions for judicial separation some essentials are there to follow. Besides Judicial separation agreement of separation can also be done. In agreement of separation, there is no interference of court, couples sign agreement with their own consent and husband gives maintenance to his wife according to his capacity.  

Author’s Name: Umra Khan (Jamia Millia Islamia, New Delhi)

[1] https://www.shethepeople.tv/home-top-video/divorce-laws-in-india-separation-judicial-separation-and-divorce/amp/

[2] https://www.vidhikarya.com/legal-blog/Can-couples-get-separated-without-a-divorce last accessed on 11th of July

[3] https://blog.ipleaders.in/judicial-separation-under-hindu-marriage-act-1955/amp/ last acceded on 11th July

[4] Ravathi vs. Union of India, 1988

[5] Section 497 of IPC

[6] Anima Roy vs. Probodh Mohan Roy, AIR 1969

[7] https://www.indialawoffices.com/knowledge-centre/judicial-separation

[8] Matrimonial Causes Act, 1973

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