Sometimes we used both the terms, ‘Judicial separation/legal
separation’ and ‘Divorce’ inter-changeably, but are they the same? Obviously
not. So, let’s directly jump on the topic and understand the difference between
both of them.
Difference between Judicial
Separation and Divorce
1.
Judicial separation is suspension of conjugal
rights or marital obligations for a specific period of time. Whereas, Divorce
is a process by which the marriage is formally comes to an end.
2.
The objective of judicial separation is
exploring the possibilities for re-union between husband and wife, whereas in
divorce, getting rid from the marital obligations constitutes its main
objective.
3.
The provisions related to judicial separation is
given under section 10 of Hindu marriage act, 1955, whereas section 13 deals
with provisions related to divorce.
4.
The process of judicial separation is much
faster and not time-consuming as there is only one stage that is the stage of
the passing of a decree for separation. However, in the case of Divorce, there
are two stages before the court passes its order, i.e., the stage of
reconciliation and after that stage, if the parties still want to get separated
then the court passes the order of divorce.
5.
The application for judicial separation can be
filed instantly after the marriage, whereas for the divorce, at least period of
1 year need to be passed, (Though it can be allowed in this duration also, but in
rarest in rare cases).
6.
In judicial separation, the legal status of
husband and wife does not get effected, but after the divorce, since the
marriage itself gets dissolves, it also ends their legal relationship.
7.
In case of judicial separation, the parties are
prohibited to remarry, whereas after the divorce, as such no restriction is
there.
8.
In case of judicial separation, the right to
inheritance does not get suspended, but as soon as the decree for divorce
passed, it also ends all the rights and obligations in this regard.
9.
Let’s understand it with an illustration:
Aayush is married with Ishika. Just after their marriage,
they indulged in an argument over eating fast food in everyday dinner. The
argument was so intense that they approached the court and submit that they no
longer want to stay together. The court passed a decree for judicial
separation. Now if with the passage of time, the understanding is developed
between both of them, and they started living together again, then the
objective of granting judicial separation accomplished with their re-union. But
if in case, they did not able to come on same table even after the given time
period, then it can be used as ground for their divorce.
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Understand it with the help of a
Table
|
Grounds |
Judicial Separation |
Divorce |
|
Definition |
1.
Suspension of conjugal rights or marital
obligations for a specific period of time, can be called as judicial
separation. |
Divorce is a process by which the marriage is formally comes to an
end. |
|
Defined under |
Section 10 of Hindu marriage act, 1955 |
Section 13 of Hindu marriage act, 1955. |
|
Main objective |
Granting an opportunity for re-union in the marriage |
Dissolve the marriage. |
|
Minimum time for filing an application |
Can be filed at anytime after the marriage |
Can be filed after a period of 1 year, rarest in rare cases being an
exception for same. |
|
Effect on legal status |
Marital status remains maintained. |
Dissolve the marital status. |
|
Prohibition on marriage |
Both the parties are not permitted to marry. |
The parties are allowed to marry as per their choice. |
|
Right to inheritance |
Remain enforced |
Ends with the passing the decree for the divorce. |
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Tip:
The grounds for judicial separation and divorce are exactly the
same, i.e.:
1.
Adultery: When either of the spouses committed cheating,
and had voluntary sexual intercourse with any person other than their spouse,
after the solemnization of their marriage.
2.
Cruelty: When one of the spouses treats the
other with cruelty or aggressive nature, which causes danger to their life or
health, which includes both physical as well as mental.
3.
Desertion: When one of the spouses to the
marriage abandoned the other without a reasonable cause and consent for a
continuous period of at least two years before the filing the application.
4.
Insanity or unsound mind: When one of the
spouses is suffering constantly from an incurable mental disorder of such a
kind and to such an extent that the petitioner cannot reasonably be expected to
live with the respondent any further.
5.
Conversion in other religion: When one of the
parties to the marriage convert his or her religion, it constitutes a valid
ground.
6.
Incurable/communicable/venereal diseases: such
as; HIV, AIDS, Genital Herpes, Syphilis etc.
7.
Renounced the world – When one of the
parties has relinquished the world either on religious or spiritual grounds.
8.
Child marriage – Either of the spouses is
married without his/her consent before attaining the prescribed age.
9.
Presumed dead – When one of the parties to the
marriage has not been heard of being alive for a continuous period of seven
years.
Additional grounds for the wife
1.
Bigamy.
2.
Rape, sexual harassment, molestation, bestiality
or sodomy.
3.
Repudiation of marriage: If a girl is married
before she reaches the age of puberty or before she attains 15 years, she can
renounce that marriage after completing the age of 15 years.
4.
Non-resumption of co-habitation: The wife can
seek judicial separation if the cohabitation between the parties has not been
resumed for around one year or more, following an award of maintenance made by
any court against the husband and in favor of the wife.
Post written by: Siddharth Sharma,
Connect him on Twitter.
Also read: Important descriptive questions on Constitutional Law, click here.
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