Scope of Judicial Separation and Divorce

What is Judicial Separation?

The term Judicial Separation is defined under section 10 of the Hindu Marriage Act, 1955. Under this section, Judicial Separation is defined as when both the husband and wife do not want to stay together and jointly file an application before the court that they do not want to stay together. There can be specific reasons and only after the fulfillment of those reasons, the court order a judicial separation between a married couple. During this time all the rights of husband and wife are not curtailed and they still are legally married to each other. They can reconsider their decision and make amends in their relationship so they do not have to divorce each other....

What is Divorce?

In our country, Divorce can be understood as a legal right that ends all the rights and obligations of marriage between a couple. The couple can divorce on various grounds and some of them are adultery, bigamy, desertion, etc. Any couple can apply for divorce only if they have completed one year of their marriage. In case one year is not completed, they cannot apply for divorce. The couple has to approach the court in case they do not want to stay together and file for divorce. The court in the case of divorce usually gives a period in which the couple has to reconsider their decision and try to make amends in their relationship. Even after this period if the couple still does not want to stay together then the court orders a decree of divorce and the marriage between them is legally ended. A divorce ends the relationship between the couple entirely and they are free to remarry....

Difference between Judicial Separation and Divorce: Key Analysis

1. Timeline...

1. Timeline

In both judicial separation and divorce the timeline for filing the petition is different. In Judicial Separation, the married couple can file the petition of judicial separation if they both agree and do not want to live with each other any time after marriage. There is no time limit specified by law to be followed while filing the petition of judicial separation in court....

2. Stages Involved

In the case of Judicial Separation of parties, if the married couple does not want to live with each other after marriage, they file a petition of Judicial Separation in the court. The court will hear the matter and investigate the reason for the Judicial Separation and if the reason is valid, then the court will allow the petition of Judicial Separation of the parties. The court will finally pass a decree for the same in which the parties will be judicially separated but the marriage between them is still valid....

3. Effects

In the case of Judicial Separation of parties, they are still legally married and all the rights of the marriage still exist. In this case, the couples are only separated and do not live together with each other. They can still reconsider this decision and choose to live again together after getting their decree of Judicial Separation turned in with the help of the court. The decree of Judicial Separation is the initial step and by that, the couple is only separated for a limited period. If the couple still chooses not to want to live together then they can file for divorce in court....

4. Remarriage

In the case of Judicial Separation of parties, they are still legally married and all the rights of the marriage are still there. So the parties in the case of Judicial Separation, do have not the right to remarry. They are legally married at the time of Judicial Separation and only the rights that the couple gets as a married couple is suspended....

5. Grounds for Divorce

Judicial Separation is the initial stage and the party can reconsider their decision of separation if they resolve disputes with each other. They cannot use divorce as a ground for their Judicial Separation as both processes are very distinct legal processes....

6. Basis for Granting the Decree

The basis for granting a Divorce and Judicial Separation is different from each other. Although various grounds are the same in both cases, in case of Judicial Separation the court can pass a decree for the same even in case of a single case of adultery. The court when satisfied by the reason given for Judicial Separation by the couple gives the decree of the same....

7. Reconciliation

In the case of Judicial Separation of parties, they are still legally married and can reconsider their decision if the difference between them has been resolved with the effect of time. The parties can reconsider their decision and with the help of the court, they can again start living together as a married couple....

8 Right to Inheritance

In the case of Judicial Separation of parties, they are still legally married and there is a right to inheritance for the parties. In case one of the parties dies during the Judicial Separation, the property of their partner will be transferred in their name....

9. Right to Maintenance

In the case of Divorce, the wife can seek maintenance from her husband as established by the law under the Hindu Marriage Act, 1955. There are also some cases in which the wife cannot claim maintenance from the husband. If the wife is involved in adultery, then she cannot claim maintenance from her husband....

10. Scope of Judicial Separation and Divorce

The scope of Judicial Separation is less or limited as compared to a decree of Divorce. In Judicial Separation, the parties are separated with the help of the court but they can reconsider their decision by making a joint application in the same court that has granted them Judicial Separation....