What is the difference between Separation and Divorce under Hindu Law?

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Judicial separation is the last resort taken by the parties to come out of their marriage relationship if they no longer want to live together. The decree of Judicial Separation would not affect the marital status of both parties and their relationship; however, there would be an impact on cohabitation.  A husband or wife may go to court and seek decree for judicial separation.  Upon pronouncement of decree of judicial separation, the party who approached the court is not obliged to live with his/her spouse.

The Hindu Marriage Act 1955 made a provision for judicial separation and all the grounds listed under in Section 13A of Act for seeking divorce are available for seeking decree for Judicial Separation for both husband and wife which are Adultery, Cruelty, Desertion, Conversion of religion, Insanity, leprosy, Communicable disease, Renunciation of world for religious purpose, and Not heard alive for seven years.

A few more grounds available for wife to seek judicial separation

  • Remarriage or solemnization of earlier marriage of the husband before the commencement of Hindu Marriage Act, 1955 and the other wife is alive at the time of Petition filed by the present wife.
  • Husband commits any rape, sodomy or bestiality after the solemnization of his marriage with the petitioner wife.
  • Absence of co-habitation between the parties for more than one year after Court passing a maintenance award to wife against husband.
  • Marriage between the parties solemnized before the Petitioner wife attained 15 years old and she repudiated such marriage when she reached age of 15 years or before she attains age of 18 years.

It is to be observed that a decree of Judicial Separation can be granted by the Court unless it finds that case has made out a case for divorce and Petitioner required to establish the grounds sought with proper proof for judicial separation.  Moreover, if co-habitation between the parties not resumed even after one year of decree for judicial separation passed, the parties can get a decree for divorce under section 13 of the Hindu Marriage Act, on this ground itself.

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The other difference is that divorce can be granted only based on those 9 grounds in section 13 (1A) mentioned above, whereas for decree of judicial separation, few more grounds are available for wife.

Despite granting the decree of judicial separation, maintenance or alimony could be granted to wife.  Ground of Judicial separation cannot be availed as a defense in maintenance case by husband.

Lastly, if the parties to marriage prefer to resume co-habitation after decree for judicial separation is pronounced, they can apply before Court for rescission of Decree of Judicial Separation, whereas in case of Divorce, such provisions are not available for the parties.

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By Anitha Gutti