Under Hindu law, Marriage is considered a sacrament and there was no legal way
to dissolve any marriage before 1955. It was only in the year 1955 that Hindu Marriage Act was passed and it mentioned the process of judicial separation and divorce. This act provides for matrimonial causes which include restitution of
conjugal rights, judicial separation, and divorce. Through this article, I will
analyze the provisions for judicial separation and divorce under Hindu law and in
the end, I will outline the differences between the two.
Judicial separation
Under section 10 of the Hindu Marriage Act, 1955 either of the parties to a marriage can approach the court with a petition for judicial separation. Here the point to be considered is that this right of filing petition has been even granted to parties whose marriages were solemnized before the enactment of the act. Judicial
separation is a way by which the parties live separately for a definite period of time
to realize the condition when they will be separated after divorce. It basically gives them a chance to analyze their lives without each other. This form of separation is a lesser form of evil to the sacramental institution of marriage as it provides the parties with another chance to reconsider their decision of divorce.
Legal effects of judicial separation
- The parties continue to have the legal status of husband and wife till the time for judicial separation.
- The parties get entitled to divorce after the expiration of the separation period.
- They are not absolved from all the marital obligations during this period.
- The parties can refuse cohabitation during this period.
- The wife can claim maintenance for the period of judicial separation.
What happens after the period of judicial separation?
After the period of judicial separation, if the parties resolve their conflicts and agree to continue their marital relationship, the court will pass a decree accordingly. If the parties still think that their marriage cannot be restored or they will be unable to fulfill their marital obligation, the court will decide the grounds of divorce and whether it is due to mutual consent or not and then pass a decree of divorce accordingly.
Divorce
Divorce is the process of dissolution of marriage by which the marital institutions come to an end and the parties become absolved of their marital obligations. It puts a direct termination on the marriage without giving them a chance to reconcile. The Hindu marriage act has listed the grounds of divorce in the form of fault grounds under section 13. Clause 1 lists the grounds on which husband and wife both can take ground for divorce and clause 2 contains grounds that can only be claimed by the wife. The amendment of 1976 added section 13B which recognizes divorce by mutual consent.