Introduction :
Judicial separation means separation from bed and board and the spouse continue to be the husband and wife to each other. Sometimes parties do not want to snap the tie of wedlock but still do not want to cohabit. In this situation where the parties don’t want to separate formally from each other, they might seek judicial separation as one year divorce is yet not available. Maybe, they want separation because a ground for the divorce is not yet available to them.
Judicial separation is an instrument devised under the law to afford some time for introspection to both the parties of a troubled marriage. Judicial Separation is a temporary suspension of marital rights between the spouses by passing a decree by the court. Under the decree of judicial separation, both parties live separately for a period of time in order to get space, independence and time to think about continuing their marriage or not. Neither of the parties is allowed to remarry during this phase if any of the parties remarries they will be guilty of bigamy. During the subsistence of the decree of judicial separation if any one of the parties dies the other will succeed to the property.
Grounds of Judicial Separation :
The grounds of judicial separation are as follows :
Adultery:
It means consensual sexual intercourse between a married person and another person of opposite sex during the subsistence of the former’s marriage. Adultery must be proved beyond reasonable doubt and not merely on balance of probability. Meaning of adultery was observed in the case Jyotish Chandra Guha Vs Smt Meera Guha AIR 1966 MP 130(DB) where a wife was living separately from husband with her parents and no kind of access was there between the couple during which a child was born to wife.
It was the proof that wife was having a sexual relationship with some other person. The standard of proof of adultery in the matrimonial suit is proof beyond reasonable doubt. Adultery from its nature is a secret act. A single act of adultery may be sufficient now for the relief under this head.
Cruelty :
The concept of cruelty has varied from time to time, from place to place and from individual to individuals, in its application, according to the social status of the persons involved and their economic conditions and other matters. The question whether the act complained of was cruel is to determine from whole facts. The husband accusing his newly wedded wife of unchastity and driving her out, Her parents sending her again to husband and wife committing suicide.
The aspect of intention may become crucial and important in such cases. Cruelty may be infinite. In case of Dr Narayan Dastane Vs Mrs Sachets Dastane harm or injury to health, reputation, the working career would be considered the act of cruelty. Cruelty need not be physical but mental cruelty can also a person, can lead to a state of depression. In such circumstances, the party suffering can be judicially separate.
Desertion :
The desertion means the intentional permanent abandonment of one spouse by the other without other’s consent and without reasonable cause. Deserting spouse has locus paenitentiae and can purge consequences of desertion offering to live with the deserted spouse. The expression “desertion” means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party and includes the wilful neglect of the petitioner by the other party to the marriage.
Vulnerable disease:
Either of the parties is suffering from any venerable disease such as AIDS, HIV, Herpes. The party can be judicially separate on this ground.
Child marriage :
If wife or husband is married before 18 years without their consent, they can separate from each other.
Conclusion :
Judicial separation is the final turn given to the parties by the court where the husband and wife have time to think again about their relationship and settle their misunderstandings. If after judicial separation they still are not clear about the continuation of their marital status can take divorce.
