SEC. 10 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.
The provision of judicial separation aims to preserve marriage bond, as the parties may regret action taken in haste as anger during the period of one year. Thus, judicial separation either leads to reconciliation or to divorce. It is thus viewed as a lesser evil than divorce as it leaves open the door for reconciliation.
Judicial separation can be allowed only if the marriage is valid. A petition for judicial separation cannot lie if the marriage between the parties was void ab initio.
It may be noted that a spouse who is merely living apart without having obtained a decree for judicial separation cannot be said to be ‘judicially separated.’ For this relief either party to the marriage has to present a petition in the court.
A decree of judicial separation is a judgment in rem, and will be operative till it is not rescinded.
In judicial separation, since a decree for judicial separation is a judgment in rem, if parties want to resume cohabitation, an order of the court rescinding the decree will be necessary.
Ordinarily, the court will rescind the decree whenever parties ask for it. If the cohabitation is not resumed for a period of one year or more after the passing of decree of judicial separation, any party may sue for divorce under Section 13(1 A) (ii) of the Hindu Marriage Act.
PETITION FOR DIVORCE AND JUDICIAL SEPARATION
A petition for judicial divorce can be presented on any of the grounds mentioned in Sec.13 (1) & (2). In a petition for divorce, if the petitioner fails to establish the alleged ground of divorce, though facts do establish a ground for judicial separation, the court has power to pass a decree for judicial separation, even though no such prayer has been made in the petition.
The Madras High Court said that a petitioner can ask for a lesser relief of judicial separation in a petition originally filed for divorce even at the appellate stage.
CHANDRA V. SUDESH,
A petition for divorce was filed in January, 1966. The Additional District Judge passed a decree of divorce on September 25, 1967.
On appeal, the single Judge of the High Court converted it into a decree of judicial separation as he felt that ground for divorce was not established.
On a letters patent appeal, the court said that the decree of the single judge will be effective from the date on which the trial court passed the decree.
Since by the time the letters patent appeal came for disposal, a period of two years had already elapsed since the passing of the decree of judicial separation, the court said that a decree of divorce could be passed under Section 13(1A).
This means that the court allowed divorce on a ground which was (and which could not be inserted) not taken in the original petition for divorce.”
The Marriage Law (Amendment) Act, 1976, has a new Section 13-A to give statutory recognition to this rule. The new section runs:
SECTION 13-A
"In any proceedings under this Act, on the petition for dissolution of marriage by a decree of divorce except where the petition is set on the grounds mentioned in clause (ii) [change of religion] clause (vi) [renunciation of world] or clause (vii) [presumption of death] of sub-section (1) of Section 13, the court may, if it considers it just to do so having regard to the circumstances of the case, pass instead a decree for judicial separation".
EFFECTS OF THE DECREE.
A judicial (or legal) separation is one which permits the parties to a marriage to live apart. If a decree for judicial separation is passed by a competent Court, it is no longer obligatory for either party to cohabit with the other. Such a decree does not, however, dissolve the marriage or sever the matrimonial ties between the parties. Yet, it is equally true that certain mutual rights and obligations arising from the marriage are, so to say, suspended when such a decree is passed. It is no longer obligatory for the Petitioner to cohabit with the Respondent.
However, the Court has the power to rescind such a decree on an application by either party, if it considers it just and reasonable to do so. it may be noted that the statutory relief of judicial separation is a discretionary one.
