"The Judicial Separation is considered to be the stepping stone towards divorce." Elucidate the statement.

Question: "The Judicial Separation is considered to be the stepping stone towards divorce." Elucidate the statement. [JJS 2018]

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Answer

Under the scheme of the Hindu Marriage Act, 1955 the ambit and the scope of Judicial Separation and Divorce are qualitatively different. Judicial separation is a completely different relief that the aggrieved spouse may seek against the other, under Section 10 of the Hindu Marriage Act, which reads as under:

"(1) Either party to a marriage, whether solemnised 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." (emphasis supplied)

Thus, the aggrieved spouse may, instead of seeking the relief of divorce, seek a decree of judicial separation on the same grounds on which he/she may seek divorce. The law gives an option to the aggrieved spouse/petitioner to seek either of the two reliefs. While judicial separation does not end the matrimonial relationship and the marriage is preserved - after a declaration is made establishing the matrimonial misconduct by the other spouse, and it entitles the aggrieved spouse/petitioner to deny conjugal relationships to the other spouse/respondent, a decree of Divorce puts an end to the jural relationship of marriage between the parties, thus liberating them from their marital bond. Whereas a decree of judicial separation can be rescinded by the same court; a decree of divorce can be reversed only by a judicial order: either in review or in appeal. If it is passed ex parte, it may be recalled on an application being made for that purpose.

Thus, when a decree of judicial separation is passed, the aggrieved spouse is no longer bound to cohabitate with the other, even though, the matrimonial bond continues to subsist. The parties cannot remarry during the period of judicial separation, since the status of marriage subsists. On the other hand, the parties cease to remain husband and wife, once a decree of divorce is granted, and the parties are free to remarry once the statutory period of appeal expires, and there is no restraint order passed by a competent court against remarriage.

Judicial separation and divorce are completely different reliefs- granted on the same grounds as contained in Section 13 (1), and in the case of a wife, also on any of the grounds specified in sub-Section (2) of Section 13 of the Hindu Marriage Act,1955.

The Supreme Court in Hirachand Srinivas Managaonkar v. Sunanda, (2001) 4 SCC 125, explained the concept of judicial separation as follows :

"In this connection, another question that arises for consideration is the meaning and import of section 10(2) of the Act in which it is laid down that 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 with the truth of the statements made in such petition, rescind the decree if it considers it just and reasonable to do so.

The question is whether applying this statutory provision to the case in hand can it be said that the appellant was relieved of the duty to cohabit with the respondent since the decree for judicial separation has been passed on the application filed by the latter.
On a fair reading of the sub-section(2) it is clear that the provision applies to the petitioner on whose application the decree for judicial separation has been passed.

Even assuming that the provision extends to both the petitioner as well as the respondent it does not vest any absolute right in the petitioner or the respondent not to make any attempt for cohabitation with the other party after the decree for judicial separation has been passed.

As the provision clearly provides the decree for judicial separation is not final in the sense that it is irreversible; power is vested in the Court to rescind the decree if it considers it just and reasonable to do so on an application by either party. The effect of the decree is that certain mutual rights and obligations arising from the marriage are as it were suspended and the rights and duties prescribed in the decree are substituted therefor. The decree for judicial separation does not sever or dissolve the marriage tie which continues to subsist.

It affords an opportunity to the spouse for reconciliation and re-adjustment. The decree may fall by a conciliation of the parties in which case the rights of respective parties which float from the marriage and were suspended are restored. Therefore, the impression that section 10(2) vests a right in the petitioner to get the decree of divorce notwithstanding the fact that he has not made any attempt for cohabitation with the respondent and has even acted in a manner to thwart any move for cohabitation does not flow from a reasonable interpretation of the statutory provisions. At the cost of repetition, it may be stated here that the object and purpose of the Act is to maintain the marital relationship between the spouses and not to encourage snapping of such relationship."

In light of the aforesaid, various judicial precedents have clarified that Judicial Separation is very often a stepping stone to a divorce and, more often than not, a decree for Judicial Separation serves, as the foundation for a decree of divorce under Section 13(1A)(i). [Rabindra Nath Mukherjee v. Iti Mukherjee, II (1991) DMC 227]

The Hon’ble High Court of Delhi in the case of Sqn. Ldr. J.S. Sodhi v. Amarjit Kaur, 1980 SCC Online Del 10, has also made the following relevant observation:-

“Before the final step of dissolving the marriage is taken by the court the parties will have one year's time to think coolly and decide, if they so wish, in favour of reversal of their decision taken in the white heat of emotion. One year's time is intended to bring peace in a life of disharmony and discord. It is a non-cohabitation provision and nothing more.”