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JUDICIAL SEPARATION[1]

QUESTION BANK.

Q.1. Write an essay on ‘Judicial Separation’.

Q.2. What is Judicial separation? What are the grounds of Judicial Separation?

SHORT NOTES.

1. Judicial Separation.
2. State the difference between ‘divorce’ and ‘Judicial Separation’.

SYNOPSIS

1. INTRODUCTION.
2. DIFFERENCE BETWEEN JUDICIAL SEPARATION AND

 DIVORCE.

1. Dissolution of marriage.
2. Status as husband and wife.
3. Bigamy.
4. Succession to property.
5. As to rejoining.

III. GROUNDS OF JUDICIAL SEPARATION.

1. Under Hindu Law-
2. Under Muslim law.
3. Under Christian Law.
4. Under Special Marriage Act.
5. Under Parsi law.

I.        INTRODUCTION.

                     The remedy of Judicial Separation is less drastic than divorce or nullity of marriage. This is because it leaves open the option of reconciliation (i.e., rejoining) or divorce.

II.      DIFFERENCE BETWEEN JUDICIAL SEPARATION AND DIVORCE.

1. Dissolution of marriage.

                    Divorce dissolves the marriage, whereas a decree of judicial separation does not dissolve the marriage but merely suspends marital rights.

2. Status as husband and wife.

                    After the decree of divorce, the status of husband and wife ceases. Their status becomes spinster (as if they had not married). In contrast, the decree of Judicial Separation does not take away their status as husband and wife.

3. Bigamy.

                    After the divorce decree, the party’s status becomes a spinster; hence, their subsequent marriage cannot be called bigamous. However, while the decree of Judicial Separation is in subsistence, re-marriage of the party is bigamous.

4. Succession to property.

                    Divorce dissolves the marriage permanently; hence, after the divorce decree, no party is entitled to succeed in the other’s property on his/her death. However, during the subsistence of the decree of judicial separation, if one of the spouses dies, the other can succeed in his property.

5. As to rejoining.

                    Divorce dissolves marriage permanently; hence there is no scope for rejoining in marriage. However, during the subsistence of the decree of Judicial Separation, parties to it may rejoin.

III. GROUNDS OF JUDICIAL SEPARATION[2].

                    In many personal laws, Judicial Separation is recognised. However, the grounds for separation may vary. The grounds for divorce and Judicial Separation are the same in some cases.

1. Under Hindu Law-

                    According to S. 10 of the Hindu Marriage Act, all divorce grounds are available for judicial separation.

2. Under Muslim law.

                    Muslim law does not make provisions for Judicial separation.

3. Under Christian Law.

                    According to S. 22 of the Indian Divorce Act, a decree of judicial separation may be obtained on the grounds of adultery or cruelty or desertion without reasonable excuse for two years or upward.

4. Under the Special Marriage Act.

                    All grounds available for divorce under the Special Marriage Act similarly apply to judicial separation. However, ‘non-compliance of the decree of restitution of conjugal rights’ is an additional ground available for the petitioner under S. 23 of the act for judicial separation.

5.  Under Parsi law.

1. 34 of the Parsi Marriage and Divorce Act also provides similar grounds of ‘divorce’ for the judicial separation petition.

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[1] कायदेशिर वैवाहिक विभक्तता [न्यायिक पृथक निवास]

[2] आधार/कारणे