Difference between Judicial Separation and Divorce

Difference between Judicial separation and Divorce. 

By Tanvi More & Praveen Kaushik  

JUDICIAL SEPARATION – A Judicial separation is a legal process by which a married couple is formally separated, despite being legally married. Judicial separation according to: Section 10 of the Hindu Marriage Act, 1955 provides: 

“(1) Either party to a marriage, whether solemnized before or after the commencement of this Act, may present a petition praying for a decree for judicial separation on any of the grounds specified in sub-section(1) of section 13, and in the case of a wife also on any of the grounds specified in sub-section (2) thereof, as grounds on which a petition for divorce might have been presented. 

(2) Where a decree for judicial separation has been passed, it shall no longer be obligatory for the petitioner to cohabit with the respondent, but the Court may, on the application by petition of either party and on being satisfied of the truth of the statements made in such petition rescind the decree if it considers it just and reasonable to do so”. 

DIVORCE – Divorce is the process of terminating a marriage or marital union. Divorce usually entails the cancelling or reorganizing of the legal duties and
responsibilities of marriage, thus dissolving the bonds of matrimony between a married couple under the rule of law of the particular country or state.   

Divorce according to: Section 13 of the Hindu Marriage Act, 1955 provides: 

Section 13 of Hindu marriage Act 1955 defines divorce as: Any marriage Solemnized, whether before or after the commencement of this Act, may on a Petition Presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party: Adultery, Cruelty, Desertion, Conversion, Insanity, Leprosy, Venereal, disease, Mutual Consent.

 Judicial Separation:  

1. It can be filed any time after marriage . 

2. Marital status can be restored. 

3. After judicial separation wife can seek for maintenance . 

4. Defined U/S 10 of HMA, 1955 

5. If parties cohabit during judicial separation the marriage would be neutralized. 

6. Judicial separation is equivalent of ecclesiastical divorce.  

Divorce : 

1.It can only be filed after completion of one year of marriage. 

2. Marital status cannot be restored. 

3. After divorce woman can file for maintenance under Hindu Adoption and Maintenance Act. 

4. Defined U/S 13 of HMA , 1955 

5. Cease to exist the relationship of husband and wife 

6.Divorce completely dissolves the marriage.  

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