Introduction

In Hinduism, the four goals of life (Purusarthas) are regarded to be righteousness (dharma), wealth (artha), pleasure (kama), and liberation (moksha). Marriage is considered to be necessary to fulfil these goals. It is considered a dutiful  relationship and thus, ending a marriage was not a concept among Hindus until the Hindu Marriage Act, 1955 was introduced. Even today the courts do not grant divorce easily to the parties.The parties(husband and wife) in case of martial obligations have 2 ways to choose either judicial separation or divorce.

What is Judicial separation?

Section 10 of the Hindu Marriage Act 1955 deals with judicial separation. It means it is a judicially accepted case of husband and wife living separately while the marriage still continues.

The couples undergoing judicial separation in Hindu Marriage Act are allowed to escape matrimonial obligations like cohabitation. If parties fail to coordinate with each other and still wish to separate, courts often grant divorce after judicial separation in India. Thus, Judicial separation and divorce under Hindu law can be taken as different stages for ending a marriage.

Since courts are involved in the process, grounds of judicial separation under hindu law need to be proved before the courts for grant of decree. Husband has to pay the wife maintenance in judicial separation until divorce is granted.

What is Divorce? 

Divorce literally means putting an end to marriage. All the rights and obligations of marriage comes to an end.The parties have the right to remarry after divorce for that atleast 1 year must be passed from the date of decree passed by the court.

Grounds for Divorce

The divorce grounds under Hindu Marriage Act, 1955 include cruelty, adultery, bigamy, desertion, religious conversion, unsoundness of mind, venereal disease, etc. Most of them are also the grounds of judicial separation under hindu law.

Difference between judicial separation and divorce

1. In Judicial separation parties' conjugal rights and obligations are suspended whereas in case of divorce, marriage is dissolved by the decree of the court.

2. During the period of judicial separation parties cannot remarry whereas, in case of divorce, parties are free to remarry as marriage comes to an end. 

3. The object of Judicial Separate is to bring a couple together whereas the object of divorce is to free the couple from marriage and live independently and also to remarry.

4. In judicial separation there is a possibility of reconciliation whereas in case of divorce, there is no reconciliation.

Case Laws

ShyamSundar v. Santadevi

 In this case, the woman suffered great torture from her husband's relatives after the wedding, and the husband remained lazy and did not take any measures to protect his wife. The court ruled that deliberate negligence to protect the wife is identical to a cruel behaviour by the husband.

Anima Roy vs. Prabadh Mohan Ray (AIR, 1969)

 In this case, it was discovered that the respondent suffered from an abnormal disease 2 months after marriage. It was found that the respondent could not determine the specific time of the onset of the disease.

Therefore, it is believed that the disease was not detected at the time of marriage.

Following are the types of disease that can lead to judicial separation:

1) Leprosy - If a spouse has a disease such as leprosy that cannot be cured, the other party may apply for legal separation

2) Venereal disease- If a party to the marriage or a spouse has an incurable and communicable disease and the spouse is unaware of it at the time of the marriage, this may be a valid reason for the spouse to to file an application for judicial separation.

Smt. Jayashree Ramesh Londhe vs Ramesh BhikajiLondhe

The court held that either party can withdraw the petition after thinking over the matter about divorce through mutual consent and that in this way a party can withdraw the earlier consent though not obtained by using fraud, undue influence, and coercion.

Leela v. Anant Singh

The court held that The wife of polygamous marriage cannot be deprived of her right of divorce on the ground that, prior to the commencement of the act, she entered into a compromise with her husband to continue living with her; nor can the husband plea that her conduct or disability is a bar to her claim of divorce.

Conclusion

Before 1955, there was no provision for separation or divorce. Reforms introduced in Hindu law by way of legislation and amendments are the important step by the government. The two reliefs granted by the Hindu Marriage Act, 1955, have proven to be effective in resolving disputes between parties by giving them an opportunity to reconcile their differences or by releasing them from marital ties. The grounds for judicial separation and divorce are expressly given under the various personal laws. While most of the grounds are similar across all legislation, there are some differences with regard to the grounds for divorce under the various personal laws.