Divorce and Judicial Separation: Trends and Differences

    Marriage in the Indian society holds a very revered place. This reverence thereafter shapes our family laws where a married couple has more legal rights and protection than any other kind of civil union between two individuals for private purposes. Hence, attempting to keep the arrangement alive for the couple without any compelling reasons may seem like the most favourable situation, which more or less justifies the being and objective of Judicial separation. It is offered by the judiciary to spouses who decide they do not wish to be legally obliged to another party. While both alternatives are open for a divorce or an annulment, judicial separation is very different from the two.

    Under English common law, marriage was viewed as a sacrament by the church until the reformation, this led to divorce being next to impossible. Even in case of a divorce granted by ecclesiastical courts, the mandate of ‘divorcium a mens et thoro’  prevails which roughly means divorce from bed and board, not allowing the parties to remarry. This solution was not really divorce, i.e., the union did not actually dissolve. This basically requires the spouses to live apart without dissolving the marital arrangement, with the prospect of re-uniting and undertaking conjugal duties again if conditions alter afterwards. This is the primitive version of the modern-day judicial separation.

     What is divorce?

    A divorce is a court’s formal termination of a marriage by a decree that allows for the legal dissolution of the marital relationship. Couples either file a joint divorce petition through mutual consent or contested divorce and the court must be persuaded that there exists absolutely no possibility of reconciliation. Contested divorce could be obtained by one of the parties on the grounds like desertion, cruelty, adultery, conversion, insanity, communicable illness, the presumption of death, or renunciation of the world.   

    An alternative ground for divorce has also been laid out under Section 13(b) of the Marriage Law (Amendment) Act, 1976 [1]. If both parties believe that the union is broken and there is no hope for compromise, both parties may submit a divorce decree pursuant by mutual consent via Section 13(b). By invoking this the court may not inquire for any justification for divorce and issue a decree in favour of the parties. This was not the norm earlier. Earlier, upon submission of a petition for mutual consent divorce, a term of 6 months for reconciliation is given as a cool-off period. But later the Supreme Court did away with the necessary reconciliation span of six months in the case, Nikhil Kumar v. Rupali Kumar.[2]

    What is judicial separation?

    Judicial separation is an opportunity to cogitate about the likelihood of continuing the relationship as divorce is too severe a step.  The court allows the couple room to weigh the options and the implications of their decision open to them. The judicial separation allows the courts to guarantee that the usual burden and tension of daily life are not the reasons for a decision to dissolve a marriage. This becomes more important because of the long-term effects of a divorce such as custody battles for children, guardianship, maintenance, etc.

    Key difference between divorce and judicial separation

    Marital Status: The spouses’ marital status is that they both are legally not married to each other in case of divorce. Conjugal rights under personal laws are terminated with the divorce decree. On the contrary, the spouses are still together in the case of judicial separation and their union is still legitimate in the light of the law. If the judicial separation is not helpful to save the marriage due to a lack of reconciliation, it is converted into a decree of divorce.

    Case for Remarriage: In cases of divorce, after the decree has been issued from the judge, the parties are eligible to marry again to other people. However, partners are deemed to be married after the time of judicial separation and the marital relationship has not expired due to their separation. Therefore, throughout the time of judicial separation, none of them can actually remarry and any such conduct would lead to bigamy and adultery, the former of which is punishable under section 494 of the Indian Penal Code,1860.[3]

    Provision for Reconciliation: There is no option of reconciliation in the event of divorce when the marriage ends through the legal process. If the couples decide to reconcile, however, they’d have to marry all over again. Conversely, reconciliation is the prime object of judicial separation. It attempts to encourage spouses to stay separately in an attempt to resolve their differences with each other.

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    Judicial separation and family laws

    The grounds for divorce and judicial separation were different before the Rules of Marriage (Amendment ) Act was passed in 1976 [4]. This legislation has more or less made the grounds of divorce and judicial division symmetric. Hence, across all personal laws and secular legislation, generally, grounds for divorce like adultery, cruelty, conversion, insanity, communicable disease, desertion, renunciation to the world presumption of death are the grounds for a judicial separation. 

    Section 10 of the Hindu Marriage Act, 1955 [5] allows for judicial separation. As for the grounds available to the parties, it is the same as the divorce grounds but for a woman, the few other grounds are open for her: bigamy, child marriage, sodomy, or bestiality. The Hindu Marriage Act doesn’t particularly specify the duration of judicial separation but what Section 13 of the Act does state that the couple can pursue divorce if the judicial separation has continued for a year.

    Under the Dissolution of Muslim Marriage Act, 1939,[6] and the Muslim Women (Protection of Rights on Marriage) Act, 1986 [7], there exists no specific provision for such a  judicial separation. However, over the years, as interpreted by the courts of law, the judicial separation has indeed been practiced for divorces that take place through judicial means as opposed to extra-judicial ones. The supreme court, in Ms. Jordan Diengdeh v. S.S. Chopra[8], noted that, under Section 2 of the Dissolution of Muslim Marriage Act [9] , the conditions for divorce could be the same for granting judicial separation.

    As observed under Section 34 of the Parsi Marriage and Divorce Act of 1936 [10], Section 22 of the Divorce Act [11] and Section 23 of the Special Marriage Act of 1954[12], the grounds for divorce are in general, grounds for a judicial separation as well. The grounds for divorce are eleven under sections 10 and 10A of the Indian Divorce Act, after the 2001 amendment [13].  Albeit this, there are only three which are; adultery, cruelty, and desertion,  for judicial division in number, as under section 22 of the same statute.

    The Apex Court stated, in the aforementioned case of Jorden Diengdeh v. S.S.Chopra [14], that unlike other marriage laws,  in the Indian Divorce Act, a person securing a decree for judicial separation would have to continue with the same decree and cannot attempt to follow it up with a divorce decree even after an indefinite lapse of time. This apparent inequity was not taken into account by Parliament, and even after the reform in 2001, a couple still judicially divorced would have had to reassert the very same grounds in separate divorce proceedings. Since divorce is given to couples belonging to other faiths on this basis, there is no constitutionally viable justification for refusing Christians the same privilege.

    Conclusion

    Judicial separation is one of the first rungs in the legal ladder towards divorce and the last step in an effort to settle the partners, but it is a choice that should be discussed by any couple looking to dissolve their union. These two remedies are provided by personal law statutes and imposed by the courts to guarantee that parties whose marriages have failed but there is always a possibility of settlement and even for parties whose marriages have irreversibly broken down have at least some kind of additional redress.

    References

    [1] The Marriage Law (Amendment) Act, 1976 , s.13(b).

    [2] Nikhil Kumar V. Rupali Kumar, (2016)13 SCC 383.

    [3] The Indian Penal Code,1860, s.494.

    [4] Supra 1.

    [5] The Hindu Marriage Act, 1955,s.10.

    [6] The Dissolution of Muslim Marriage Act, 1939.

    [7] The Muslim Women ( Protection of Rights on Marriage) Act, 1986.

    [8] Ms. Jordan Diengdeh v. S.S. Chopra, 1985 SCR Supl. (1) 704.

    [9] The Dissolution of Muslim Marriage Act, s.2.

    [10] The Parsi Marriage and Divorce Act of 1936, s.34.

    [11] The Divorce Act, 1869, s.22.

    [12] The Special Marriage Act, 1954, s.23.

    [13] The Indian Divorce (Amendment) Act, 2001, ss. 10, 10A.

    [14] Supra 8.


    BY SHATAKSHI | NATIONAL LAW SCHOOL OF INDIA UNIVERSITY, BANGLORE 

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