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Marriage is considered as a sacrament under Hindu religion, representing an indissoluble bond between the husband and wife that is formed through sacred rituals and customs. The Hindu Marriage Act, 1955 provides the legal framework for obtaining judicial separation and divorce. Judicial separation is the suspension of marital duties and rights without dissolution of marriage, while divorce is the legal dissolution of the marriage. The aim of judicial separation is to explore the potential for reconciliation between the couple, while the primary objective of divorce is to terminate the marital obligations.

Divorce:

Divorce is a legal process where the marriage is dissolved, and both parties are no longer legally bound to each other. Section 13 of the Hindu Marriage Act, 1955 deals with the provisions of divorce. According to Section 13(1) of the Act, any marriage, whether solemnized before or after the commencement of this Act, may be dissolved by a decree of divorce upon presentation of a petition by either the husband or the wife on the following grounds:

Adultery: If the other party has had voluntary sexual intercourse with any person other than his or her spouse after the solemnization of the marriage.

Cruelty: If the other party has treated the petitioner with cruelty after the solemnization of the marriage.

Desertion: If the other party has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition

Conversion: If the other party has ceased to be a Hindu by conversion to another religion.

Mental disorder: If the other party has been incurably of unsound mind or has been suffering continuously or intermittently from a mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.

Virulent and incurable leprosy: The spouse has been suffering from a virulent and incurable form of leprosy;

Communicable venereal disease: The spouse has been suffering from a communicable form of venereal disease;

Renunciation of the world: The spouse has renounced the world by entering any religious order;

Presumption of death: The spouse has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive.

Further, section 13(2) of the Hindu Marriage Act, 1955 provides certain additional grounds to the wife for divorce. They are-

l  If a husband had remarried or had another wife before the commencement of this Act and the other wife is still alive at the time of the petitioner's marriage, then the petitioner can present a petition only if the other wife is still alive at the time of the presentation of the petition.

l  The husband has, since the solemnisation of the marriage, been guilty of rape, sodomy or bestiality; 

l  While receiving maintenance through a decree or order, there has been no cohabitation for a year;

l  A marriage solemnized before the age of 15 can be repudiated by wife after attaining that age but before turning the age of 18 years.

Judicial Separation:

Judicial separation is a legal process where the court grants a decree of separation to the parties, which legally separates them but does not dissolve the marriage. Judicial Separation is defined under Section 10 of the Act.

"Judicial separation-

(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."

Difference between Judicial Separation and Divorce:

Application of Divorce and Judicial Separation:

According to section 19 of the Act, a petition for divorce or judicial separation can be presented to the district court within whose jurisdiction:

l  The marriage was solemnised, or

l  The respondent resides at the time the petition is presented, or

l  The parties to the marriage previously lived together, or

l  In case the wife is the petitioner, where she is residing on the date of presentation of the petition,

l  The petitioner is residing at the time of the presentation of the petition, in a case where the respondent is, at that time, residing outside the territories to which this Act extends, or has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of him if he were alive.

According to Section 21 of the Act, all proceedings under this Act are governed by the Code of Civil Procedure. According to Order VII, Rule 1 of the CPC, every petition for divorce or judicial separation must include the following information:

l  Name, status, and domicile of husband and wife;

l  The date and place of the marriage;

l  Affidavit of being Hindu;

l  Name of children, their sex, and date of birth;

l  Full details of any litigation filed prior to the filing of the petition for divorce or judicial separation;

l  Evidence of the reasons for divorce or judicial separation. For example, in the case of cruelty, a specific act of cruelty, a medical report, the location of cruelty, etc.

Divorce After Judicial Separation:

If a couple has been living separately for at least one year after the decree of judicial separation is issued, either of them may apply for divorce under Section 13 (1A)(i) of the Hindu Marriage Act, 1955. When a petition is presented to convert a judicial separation to divorce, the court will not investigate any reasons for divorce and will grant the divorce.

References:

https://blog.ipleaders.in/judicial-separation-and-divorce/

https://www.inlightoflaw.com/2021/12/difference-between-judicial-separation-and-divorce.html?m=1