Judicial Separation: How-to Guide on Conditions, Procedure and Laws in India

Divorce ends the marriage, while a judicial separation gives the marriage a chance by not ending the marital ties but allowing the couple to stay apart, while still in marriage. Judicial separation is a sort of a last resort before the actual legal break up of marriage i.e. divorce.

The Grounds for Judicial Separation in India

The marital relations may be suspended, the obligations may be modified, but the marriage is still not dissolved. The process, as defined by Section 10 of Hindu Marriage Act, 1955, is:

Presentation of a petition praying a judicial separation decree (and not divorce) for the same reasons as pointed out for divorce.
The spouses, if decree is passed, don’t have to stay together after judicial separation decree is approved, unless the court directs.

Difference between Judicial Separation and Divorce

JUDICIAL SEPARATION

DIVORCE

Can file a petition at any time post marriage.
Only one stage of judgement. If grounds are satisfied, decree granted.
Temporary suspension of marriage.
Cannot remarry after the passage of decree.
It is a ground for divorce.
A single instance of adultery sufficient for Judicial Sep.
The possibility of reconciliation.

Can file only after completion of one year of marriage.
Judgement is a two-step process. First reconciliation, then divorce.
Brings marriage to an end.
Can remarry once decree in favor of divorce is passed.
Living in an adulterous relationship necessary.

No possibility of reconciliation.

Where a decree for judicial separation has been passed in your favour, it shall no longer be obligatory for you to cohabit with your spouse.

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FAQ on Judicial Separation

Can I get remarried if I am separated from my spouse?

No. Since in judicial separation the parties are still legally married, remarriage would be a criminal offence with punishment of upto 7 years on conviction.

How do you apply for judicial separation?

If a couple is seeking judicial separation they must move a petition in a district court under their respective personal laws, i.e Hindu Marriage Act, 1955 for Hindus, Indian Divorce Act, 1869 for Christians etc.

Is it different from divorce?

Yes. Unlike in divorce, judicial separation means that the parties are still married and have not ended their marriage. In judicial separation the obligations of a married couple still have to be kept but in a divorce all these obligations are foregone.

Under what circumstances can you be separated?

While it varies across the various personal laws the following are common among all:

adultery
cruelty
unsoundness of mind
desertion without reasonable excuse