Difference between Judicial Separation and Divorce

In India, marriage is considered very sacred and it is celebrated differently in different parts of the country. The families of both parties are also involved in the same and after performing the rituals of the marriage as per their customs, marriage between a boy and girl is completed. In our country, there was no rule of separation of marriage before the introduction of the Hindu Marriage Act, 1955. Before this act, the couple between whom marriage is performed had to stay together even if they had any differences between them. But after the introduction of the act, the couple who have any differences in the marriage can take the help of judicial separation or divorce and can part away ways with their partner.

What is Judicial Separation?

The term Judicial Separation is defined under section 10 of the Hindu Marriage Act, 1955. Under this section, Judicial Separation is defined as when both the husband and wife do not want to stay together and jointly file an application before the court that they do not want to stay together. There can be specific reasons and only after the fulfillment of those reasons, the court order a judicial separation between a married couple. During this time all the rights of husband and wife are not curtailed and they still are legally married to each other. They can reconsider their decision and make amends in their relationship so they do not have to divorce each other.

What is Divorce?

In our country, Divorce can be understood as a legal right that ends all the rights and obligations of marriage between a couple. The couple can divorce on various grounds and some of them are adultery, bigamy, desertion, etc. Any couple can apply for divorce only if they have completed one year of their marriage. In case one year is not completed, they cannot apply for divorce. The couple has to approach the court in case they do not want to stay together and file for divorce. The court in the case of divorce usually gives a period in which the couple has to reconsider their decision and try to make amends in their relationship. Even after this period if the couple still does not want to stay together then the court orders a decree of divorce and the marriage between them is legally ended. A divorce ends the relationship between the couple entirely and they are free to remarry.

Basis	Judicial Separation	Divorce
Timeline	No time limit specified to file Judicial Separations.	A time limit of 1 year is specified by the court.
Effects	The marriage is still valid.	All the rights towards the marriage are finished.
Reconciliation	The parties can reconsider their decision and start living together as a married couple.	Divorce is a final step and there is no chance of reconciliation.
Right to Inheritance	Right to Inheritance exists even if one of the party dies.	Right to Inheritance does not exist as there is no relationship between the parties.
Scope	Very less or limited scope.	The scope is wide.

Difference between Judicial Separation and Divorce: Key Analysis

1. Timeline

In both judicial separation and divorce the timeline for filing the petition is different. In Judicial Separation, the married couple can file the petition of judicial separation if they both agree and do not want to live with each other any time after marriage. There is no time limit specified by law to be followed while filing the petition of judicial separation in court.

In the case of Divorce between couples, a time limit of 1 year is specified by the court. It means that any married couple cannot file a petition of divorce in the court even if they do not want to live with each other. The time limit of 1 year is established by the law of our country so that married couples try everything that they can to save their marriage and do not make the decision to divorce in sudden anger or because of small issues.

2. Stages Involved

In the case of Judicial Separation of parties, if the married couple does not want to live with each other after marriage, they file a petition of Judicial Separation in the court. The court will hear the matter and investigate the reason for the Judicial Separation and if the reason is valid, then the court will allow the petition of Judicial Separation of the parties. The court will finally pass a decree for the same in which the parties will be judicially separated but the marriage between them is still valid.

In cases of Divorce, there are multiple steps involved. The couple cannot get a divorce even if both of them do not want to live with each other without following the steps established by the law. In cases of Divorce, the court in the first steps asks both parties to reconsider their decision and try various steps to resolve the dispute in their marriage such as mediation, reconciliation, and counseling. The court by these steps tries that the couple do not end their marriage without any effort of being together. Even after these steps if the couple still does not want to stay together then the court passes a decree of divorce that effectively terminates the marriage between the parties.

3. Effects

In the case of Judicial Separation of parties, they are still legally married and all the rights of the marriage still exist. In this case, the couples are only separated and do not live together with each other. They can still reconsider this decision and choose to live again together after getting their decree of Judicial Separation turned in with the help of the court. The decree of Judicial Separation is the initial step and by that, the couple is only separated for a limited period. If the couple still chooses not to want to live together then they can file for divorce in court.

In the case of Divorce of parties, all the rights of the parties towards the marriage are finished. Divorce brings the marriage between the parties to a complete end and both the parties are free to start their new life. All the restrictions of the marriage on that couple are waived off by divorce.

4. Remarriage

In the case of Judicial Separation of parties, they are still legally married and all the rights of the marriage are still there. So the parties in the case of Judicial Separation, do have not the right to remarry. They are legally married at the time of Judicial Separation and only the rights that the couple gets as a married couple is suspended.

In case of Divorce between the parties, they are free to get remarried. As with the decree of Divorce, the marriage between the parties is legally dissolved and they can remarry with anyone they want.

5. Grounds for Divorce

Judicial Separation is the initial stage and the party can reconsider their decision of separation if they resolve disputes with each other. They cannot use divorce as a ground for their Judicial Separation as both processes are very distinct legal processes.

In case of Divorce if the parties are already judicially separated and still do not want to stay together and do not want to resolve their disputes then they can use the ground of Judicial Separation for their divorce. The parties who are going through Judicial Separation for more than a year and still want to stay away from each other, then can file a petition for the same in the court and the court will grant a decree for Divorce based on Judicial Separation.

6. Basis for Granting the Decree

The basis for granting a Divorce and Judicial Separation is different from each other. Although various grounds are the same in both cases, in case of Judicial Separation the court can pass a decree for the same even in case of a single case of adultery. The court when satisfied by the reason given for Judicial Separation by the couple gives the decree of the same.

In the case of Divorce, the court gives various chances to the couple to resolve their disputes, and only after a very prolonged period if the court is satisfied that the couple cannot cohabit together then they pass a decree for Divorce. The grounds for Divorce are stated in section 13 of the Hindu Marriage Act, 1955 and the parties who have filed for Divorce have to satisfy the court about their ground under this act.

7. Reconciliation

In the case of Judicial Separation of parties, they are still legally married and can reconsider their decision if the difference between them has been resolved with the effect of time. The parties can reconsider their decision and with the help of the court, they can again start living together as a married couple.

In case of a Divorce of parties, the marriage between them is legally ended with the help of the court and they cannot reconsider their decision and have to stay apart always. The parties cannot remarry with each other. Divorce is the final step that the parties take when they are not able to stay with their partner, so there is no chance of reconciliation in the same.

8 Right to Inheritance

In the case of Judicial Separation of parties, they are still legally married and there is a right to inheritance for the parties. In case one of the parties dies during the Judicial Separation, the property of their partner will be transferred in their name.

In case of a Divorce of parties, the marriage between them is legally ended with the help of the court and there is no right to inheritance for the parties. There is no relationship between the parties hence they cannot ask for any part of their property after Divorce even in case of the death of any of the parties.

9. Right to Maintenance

In the case of Divorce, the wife can seek maintenance from her husband as established by the law under the Hindu Marriage Act, 1955. There are also some cases in which the wife cannot claim maintenance from the husband. If the wife is involved in adultery, then she cannot claim maintenance from her husband.

In case of Judicial Separation of parties, they are still legally married and it is the responsibility of the husband to provide maintenance to his wife if the wife is unable to maintain herself. Various judgments have clarified that the decree of Judicial Separation does not curtail the right of maintenance of the wife.

10. Scope of Judicial Separation and Divorce

The scope of Judicial Separation is less or limited as compared to a decree of Divorce. In Judicial Separation, the parties are separated with the help of the court but they can reconsider their decision by making a joint application in the same court that has granted them Judicial Separation.

The scope of the decree of Divorce is large when compared with Judicial Separation. As in this, the marriage between the parties is legally terminated by the court and the parties cannot reconsider their decision.