Judicial Separation: A second thought to divorce

This article is written by Shreya Bansal. Shreya is commerce graduate from Shri Ram College Of Commerce and is currently pursuing Bachelors Of Law from Faculty Of Law, DU.



A marriage is a blissful companionship of two people sharing mutual love, trust and understanding which promises to be the most beautiful phase of a person’s life. But sometimes the fruits of misunderstanding, distrust and anger get sown in it which might make surviving each other’s company even for a minute to be an excruciating experience. Well, most people assume that the last resort to end this menace is divorce. Is it so? Certainly not.
There is a provision of Judicial Separation under The Hindu Marriage Act, 1955 to give time to each of the partners to resolve their issues by living separately. The basic rationale behind this kind of provision is that through the method of judicial separation, both the partners get a chance to think rationally about their relationship without the strain of living together which results in tension and further wear and tear of their marriage.
A decree of judicial separation does not answer the question of continuance or discontinuance of marriage but it frees the partners from the obligation to live together, thus preventing them from indulging into any other fights or misunderstanding which can strain their marriage further.
As per Section 10 of The Hindu Marriage Act, 1955 a case for judicial separation can be claimed on the grounds of cruelty, adultery, desertion, forced conversion of religion, incurable diseases like leprosy, insanity, venereal diseases that are communicable, renunciation of the world by a spouse on religious grounds, either of the spouse not alive and seen for more than seven years. Moreover, a woman can claim judicial separation if there is enough proof that her husband solemnized another marriage and his other wife is still alive as well as on grounds of rape, sodomy, and bestiality.
One of the interesting features of judicial separation is that it is upon the discretion of the court whether to grant judicial separation or divorce straightway depending upon the facts and circumstances of each case. Thus, a second chance will be even to all the couples to resolve their issues keeping into consideration the severity of their differences and the scope for further reconciliation.
As per Section 13 of The Hindu Marriage Act, 1955 if a couple is not able to reconcile their differences within the period of one year from the date on which the decree of judicial separation is granted and are not able to cohabit again, they can obtain a divorce on this ground itself.
On the other hand if the parties are able to reconcile their differences during the period of one year of judicial separation and want to cohabit again, they can get their decree of judicial separation annulled anytime by the court. So as per Section 10(2), the court has the power to
rescind the order of judicial separation if it considers it just and reasonable to do so, provided such power of annulment is exercised with utmost care and upon complete satisfaction with regards to the same.
Hence, not only nature but law also gives second chance to all. To protect the institution of marriage and maintain the trust of people of our country into the same, the legal institution of our country has come up with this system of judicial separation for preventing them from taking any decision in the heat of the moment and resorting to a wrong life changing decision.

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