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Making The Right Choice Between Divorce And Judicial Separation

28/11/2016 7:11 AM IST | Updated 02/12/2016 8:38 AM IST
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The stigma around the "d-word" in India is so high that quite often, couples live separately but don't divorce. While some carry on informally with such an arrangement, others take the help of the court and explore the possibility of a "judicial separation" rather than a divorce.

According to Section 10 of the Hindu Marriage Act, in a judicial separation may be applied for

"[O]n 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."

Further:

"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.

Sub-section (1) of Section 13 is applying for divorce under the various provisions of the Hindu Marriage Act, such as cruelty and desertion to name a few, while subsection (2) also provides for additional provisions for the wife for applying for divorce, including rape, sodomy or bestiality to name a few.

The effect of the decree for judicial separation is that certain mutual rights and obligations arising from marriage are put under suspension. It's important to understand that in a judicial separation the rights and obligations arising out of marriage do not end, but rather are suspended. So in effect the marriage subsists and has not ended legally.

Judicial separation does not terminate the marriage, whereas in divorce the parties are no longer husband and wife. The marriage ends.

If the parties do not cohabit for a period of one year or upwards after a decree for judicial separation was passed, either party to the marriage can claim dissolution of the marriage.

Recently, I learnt that one of the marriage counsellors in the family court, Pratima*, had not been living with her husband for several years. Now 55 years old and with two grown sons (30 and 28), she was married when she was about 22 years old. After about five years of marriage she learnt that her husband, a theatre actor, had a string of lovers. Initially she tried to look the other way for the sake of her marriage and children but after about 10 years of being together she decided to walk out of the marriage. Her parents were from a small town and, fearing the stigma of divorce, pressurised her to not file for one. Taking their feelings into consideration as well as the long-drawn hassle and disruption of a divorce, she decided to file for judicial separation instead.

In some ways, I understand why Pratima acted as she did, but I also believe that sometimes you need the finality of a divorce and a new identity to start afresh.

I believe that sometimes you need the finality of a divorce and a new identity to start afresh.

For example, I would not advise a judicial separation for Dr. Diana, 32, who had come to me for counselling. She'd met her to-be husband on a matrimonial site and had fallen in love with him. However, she was soon mentally and physically abused by her husband Mihir, who wanted her to give up her career and also transfer her flat in his name. Within eight months he'd thrown her out of his flat; a foreign passport holder, he then disappeared for about six months and she knew nothing of his whereabouts. At first, Dr. Diana wanted to file for judicial separation since she was still unsure about her relationship with her husband, but six months down the line, when there was still no sign of him, she was firm in her decision to go ahead with a divorce. Eventually, Diana got her divorce two years after filing for it and has now set up her own clinic in Mumbai.

Ultimately, the choice is yours, depending on your circumstances and the stage of life you're at. I've seen that women who have grown children are quite content to not upset the status quo and often opt for a judicial separation rather than a divorce. I usually don't advise it to younger women who may want to remarry and start a new life.

If you're confused about what to do, understanding the difference between a divorce and judicial separation can help you in making the right choice.

1. Judicial separation does not terminate the marriage, whereas in divorce the parties are no longer husband and wife. The marriage ends.

2. While undertaking proceedings for judicial separation the court does not have to consider that the marriage is permanently broken down or has come to an end, whereas in divorce it is required while presenting the petition.

3. Judicial separation goes through a one-step judgement procedure whereas divorce goes through a two-stage judgement process.

To sum up, a judicial separation is like a "trial divorce" where the couple can live separately for a period of one year. During this period they can decide whether they are actually hopelessly incompatible as a couple or are just going through a bad phase in their marriage. It gives hope to people that they still have a shot at saving their marriage and avoiding the painful experience of divorce.

*All names changed

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