Judicial Separation & Divorce: Major Differences

Meaning

Judicial Separation means a phase of a marriage where husband and wife are not obliged to stay together and the marriage has not been dissolved. It is based on the legal phrase “divorce a mensa et thoro” means “from bed and board” as per law dictionary. Basically the term is used to denote the kind of a marriage where husband and wife are not free from the bonds of marriage, nevertheless the order of Judicial Separation granted by the court prohibits husband and the wife to cohabit together and insist that they must live separately.


Distinction between Judicial Separation and Divorce

Judicial separation is always treated to be as an alternative to divorce. The basic difference between Judicial Separation and divorce is that divorce brings the marriage to an end whereas judicial separation does not.

The legal status of judicial separation is different from being divorced and married. In case of judicial separation the court orders for the prohibition on cohabiting together, but does not end the obligations of marriage. Both husband and wife still remain in the same ties of marriage obligations. In case of divorce the parties are allowed to get remarried, but in case of Judicial Separation it is illegal to get remarried.

But there are also some similarities between two. The procedure and grounds for getting both, Judicial separation and divorce are the same. It is at the option of the parties which remedy they choose from the court. If court will be satisfied it will grant the decree. Judicial Separation only suspends the obligations and duties leaving the room for reconciliation and if they fail to reconcile for one year, either of them may seek divorce on this ground.


Grounds for Obtaining a Decree of Judicial Separation


Under Special Marriage Act:

  • Same as the grounds for divorce under section 27 sub-sections 1 and 1A the Act, and
  • Failure to comply with decree for restitution of conjugal rights

Under Hindu Marriage Act:

  • Same as the grounds for divorce under section 13 sub-sections 1and 2 of the Act

Under the Divorce Act:

  • Adultery, Cruelty or Desertion for a period of 2 years or upwards

Under Parsi Marriage and Divorce Act:

  • Same as the grounds for divorce under the Act

Consequences of Judicial Separation

  • Where a decree for judicial separation has been passed, it shall no longer be obligatory for the petitioner to cohabit with the respondent.

The decree of judicial separation is passed by the court where the husband and wife have to live apart. But this does not mean that they cannot live in the same house. It does not extinguish the relation between the two.

Section 376B of the Indian Penal Code provides that sexual intercourse by a man with his own wife without her consent during judicial separation is an offence punishable with imprisonment up to 2 years and fine also.

A decree for judicial separation is by itself no ground to refuse maintenance to a claimant wife u/s 125 of the Code of Criminal Procedure whatever be the basis of such a decree.

If there is no resumption of cohabitation between the spouses for a period of one year or upwards (Hindu Marriage Act, Special Marriage act, Parsi Marriage and Divorce Act) or two years or upwards (Divorce Act) after passing of Decree of Judicial Separation, either of the spouse is entitled to file a petition seeking Divorce on the basis of this ground.


Execution of a Decree of Judicial Separation:

Since the Decree given in a matrimonial suit is executable in a manner similar to a Decree given under a civil suit, a Decree of Judicial Separation if not followed by the spouse against whom the same is obtained can be executed even by arrest and detention in prison of the said spouse if required. 


- www.askfamilyproblem.com

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