The document provides information on the differences between judicial separation and divorce under Hindu law and the Special Marriage Act, including grounds and processes for each. It can be summarized as follows: 1) Judicial separation suspends conjugal rights between parties for some time, allowing living apart, while divorce fully dissolves the marriage allowing parties to remarry. 2) Grounds for judicial separation and divorce are largely the same, including adultery, cruelty, desertion, religious conversion, and illness. Additional grounds apply to wives. 3) While judicial separation aims to potentially reunite parties, divorce permanently ends the marriage relationship and frees parties to remarry under law.

1. FAMILY LAW PRESENATATION
ON
DIFFERENCE BETWEEN JUDICIAL SEPARATION AND
DIVORCE UNDER HINDU LAW AND SPECIAL MARRIAGE
ACT WITH CASE LAWS
SUBMITTED TO:
NAZIA MA’AM
SUBMITTED BY:
KAVYA ARORA
BBA LL.B
2ND YEAR (SEMESTER-IV)
ROLL NO.:B-71

2. JUDICIAL SEPARATION
Judicial separation is the last resort taken by the
parties to come out of their marriage relationship
if they no longer want to live together. The decree
of Judicial Separation would not affect the marital
status of both parties and their relationship;
however, there would be an impact on
cohabitation. A husband or wife may go to court
and seek decree for judicial separation. Upon
pronouncement of decree of judicial separation,
the party who approached the court is not obliged
to live with his/her spouse.

3. DIVORCE
Divorce puts an end to the marriage of the parties, and the parties cease
to be husband and wife. All mutual rights and obligations arising out of
marriage are suspended and they are free to marry again.
Judicial separation and Divorce are differ from each other. Judicial
separation is suspension of conjugal rights for some time while Divorce
is a process by which the marriage is comes to an end.
The Marriage Laws (Amendment) Act, 1976 makes the ground for
judicial separation and divorce common. It is upon the parties to choose
between the two methods of dissolution.
The legal effect of judicial separation and divorce is however different.
A divorce puts the final nail in the coffin of marriage whereas judicial
separation leaves the scope of settlement between parties.
Distinction between Divorce and Judicial Separation :

4. DIVORCE JUDICIAL SEPARATION
Section 13 and 13(B) of the
Hindu marriage Act deal with
divorce.
Section 10 of the Hindu Marriage
Act deals with Judicial separation
Meaning: Divorce is a process
by which the marriage is
dissolved (comes to end).
Meaning: Judicial Separation
means suspension of conjugal
rights for some time. i.e. one
year.
In Divorce marriage is dissolved. In judicial separation Conjugal
rights are suspended.
In Divorce, Parties are free to
remarry after divorce.
Parties cannot remarry during
period of judicial separation.
The object of Divorce is to live
independently (and also to
remarry)
The object of Judicial Separation
is to unite the couple.

5. Judicial Separation under
Hindu lawEither party to the marriage, whether solemnized before or after
commencement of the Hindu Marriage Act, 1955 can under Section 10 of
the Act file a petition for judicial separation. After a decree is passed in
favour of the parties, they are not bound to cohabit with each other. Some
matrimonial rights and obligation, however, continue to subsist. They
cannot remarry during the period of separation. They are at liberty to live
separately from each other. Rights and obligations remain suspended
during the period of separation. The grounds for judicial separation are
same as for divorce. Under Section 13(1), judicial separation may be
sought on the following grounds:
Adultery: If other spouse had a voluntary sexual intercourse with any
person other than his or her spouse after solemnization of marriage.
Cruelty: If after solemnization of marriage, one of the spouse treats
the other with cruelty.
Desertion: If the other party has deserted the spouse for a continuous
period of 2 years without any reasonable ground immediately
preceding the presentation of the petition.
Conversion: If one of the spouses has ceased to be a Hindu.
Insanity: If the other party is of unsound mind or has been suffering
continuously from mental disorder of such a kind and to such an
extent that the petitioner cannot live with the other party.

6. Leprosy: If the other party has been suffering from a virulent and
incurable form of leprosy.
Venereal disease: If the other party has been suffering from
venereal disease in a communicable form.
Renounced the world: If the other spouse has renounced the world
by entering any religious order.
Has not been heard alive for seven years.
In addition to these grounds some of the grounds are exclusively
reserved for women:
• Husband has more than one wife living: If the husband had married
before the commencement of the Act and after the commencement of
the Act has again remarried either of the wives can present a suit for
judicial separation provided the other wife is alive at the time of
presentation of the petition.
• Rape, Sodomy or Bestiality: If a man is guilty of offense like rape,
sodomy or bestiality, the wife can present a petition for judicial
separation.
• Marriage before the age of fifteen years: If the marriage of women
was solemnized before attaining 15 years of age, on her attainment
of 15 years she could repudiate it but before attaining the age of 18
years.

7.  In case of judicial separation, the court can also deal with the
questions of maintenance of wife, custody of children and property
In the case of Sohan Lal vs. Kamlesh it was held that in case of
judicial separation, a wife is allowed to claim maintenance from
husband in case she is not able to maintain herself.
 Since a decree for judicial separation is a judgment in rem, if the
parties want to resume cohabitation, it is necessary for them to get
the order of judicial separation annulled by the court. Normally, the
court rescinds the degree on presentation of the petition by consent
of both the parties.
 Judicial Separation is a step prior to a divorce. The purpose of
judicial separation is to provide an opportunity to the parties to
reconcile their difference.

8. DIVORCE UNDER HINDU
LAW
Divorce puts an end to the marriage of the parties, and the parties
cease to be husband and wife. All mutual rights and obligations
arising out of marriage are suspended and they are free to marry
again.
The grounds on which divorce may be sought by either of the parties
to a marriage are the same as the grounds available for judicial
separation, i.e., Adultery, Cruelty, Desertion, Apostacy (Conversion of
religion), Insanity , Virulent and incurable form of leprosy, Venereal
disease in a communicable form, Renunciation of world by entering
any religious order and presumption of marriage. Apart from these,
the wife may seek divorce on the additional grounds mentioned under
Section 13 (2).
Either party to a marriage may also present a petition for dissolution
of marriage by a decree of divorce on the following grounds:
.

9. (i) no resumption of cohabitation between the parties to the marriage
for a period of one year or more after the passing of a decree for
judicial separation by court;
(ii) no restitution of conjugal rights between the parties to the marriage
for a period of one year or more after the passing of a decree for
restitution of conjugal rights by court.
The Marriage Law (Amendment) Act, 1976 provides an additional
ground for divorce under Section 13(b). Where both the parties feel
that the marriage is torn and there is no scope of reconciliation, both
the parties may by mutual consent present a decree of divorce under
Section 13(b) whereby the court will not enquire for any reason for
divorce and will grant a decree in favor of the parties if both of them
want a divorce. Under the Act, a period of 6 months for reconciliation
is granted on presentation of a petition for divorce by mutual consent.
However, in the case of Nikhil Kumar V. Rupali Kumar, the
Supreme Court has done away with the mandatory reconciliation
period of six months. Now, divorce on the ground of mutual consent
can be granted on presentation of the petition and parties do not need
to wait for six months.

10. JUDICIAL SEPARATION DIVORCE
•Can file a petition at any time
post marriage.
•Only one stage of judgement. If
grounds are satisfied, decree
granted.
•Temporary suspension of
marriage.
•Cannot remarry after the
passage of decree.
•It is a ground for divorce.
•A single instance of adultery
sufficient for Judicial Sep.
•The possibility of reconciliation.
•Can file only after completion of
one year of marriage.
•Judgement is a two-step
process. First reconciliation, then
divorce.
•Brings marriage to an end.
•Can remarry once decree in
favor of divorce is passed.
•Living in an adulterous
relationship necessary.
•No possibility of reconciliation.

11. JUDICIAL SEPARATION
UNDER SPECIAL MARRIAGE
ACT,1954
The grounds for the Judicial Separation under the Special Marriage
Act, 1954 are the same as that of the Judicial Separation, under the
Hindu Marriage Act, 1955, which are as follows:
Either party to a marriage may present a petition praying for a decree
for Judicial Separation on any of the grounds mentioned herein
above:-
The other party has, after the solemnization of the marriage, had
voluntary sexual intercourse with any person other than his or her
spouse; or
The other party has, after the solemnization of the marriage, treated
the petitioner with cruelty; or
The other party has deserted the petitioner for a continuous period
of not less than two years immediately preceding the presentation of
the petition; or
The other party has ceased to be a Hindu by conversion to another
religion ; or

12. The other party has been incurably of unsound mind, or has suffering
continuously or intermittently from mental disorder of such a kind and
to such an extent that the petitioner cannot reasonably be expected to
live with the respondent.
The other party has been suffering from a virulent and incurable form
of leprosy; or
The other party has been suffering from veneral disease in a
communicable form; or
The other party has renounced the world by entering any religious
order; or
The other party has not been heard of as being alive for a period of
seven years or more by those persons who would naturally have heard
of it, had that party been alive;
that there has been no resumption of cohabitation between the parties
to the marriage for a period of one year or upwards after the passing of a
decree for judicial separation in a proceeding to which they were parties;
or
that there has been no restitution of conjugal rights as between the
parties to the marriage for a period of one year or upwards after the
passing of a decree for restitution of conjugal rights in a proceeding to
which they were parties.

13. For a wife, following additional grounds are also available for seeking
judicial separation:-
The husband had married with some other woman after solemnization of
the marriage with her and/or the wife of her husband was alive at the time
of the solemnization of her marriage with her husband. In either case, the
other wife got to be alive at the time of the presentation of the petition;
The husband has, since the solemnization of the marriage, been guilty of
rape, sodomy or bestiality; or
In a suit under Section 18 of the Hindu Adoptions and Maintenance Act,
(78 of 1956), or in a proceeding under Section 125 of the Code of
Criminal Procedure, 1973, (Act 2 of 1974) or under corresponding Section
488 of the Code of Criminal Procedure, (5 of 1898), a decree or order, as
the case may be, has been passed against the husband awarding
maintenance to the wife notwithstanding that she was living apart and that
since the passing of such decree or order, cohabitation between the parties
has not been resumed for one year or upwards; or
Her marriage (whether consummated or not) was solemnized before she
attained the age of fifteen years and she has repudiated the marriage after
attaining that age but before attaining the age of eighteen years.
Where a decree for judicial separation has been passed, it shall no longer
be obligatory for the petitioner to cohabit with the respondent.

14. DIVORCE UNDER SPECIAL
MARRIAGE ACT,1954
Grounds for Divorce under Special Marriage Act are as follows:
(1)Subject to the provisions of this Act and to the rules made thereunder,
a petition for divorce may be presented to the district court either by the
husband or the wife on the ground that the respondent”
(a) has since the solemnization of the marriage committed adultery; or
(b) has deserted the petitioner without cause for a period of at least three
years immediately preceding the presentation of the petition; or
(c) is undergoing a sentence of imprisonment for seven years or more
for an offence as defined in the Indian Penal Code (Act XLV of 1860):
or
(d) has since the solemnization of the marriage treated the petitioner
with cruelty; or
(e) has been incurably of unsound mind for a continuous period of not
less than three years immediately proceeding the presentation of the
petition; or
(f) has for a period of not less than three years immediately preceding
the presentation of the petition been suffering from venereal disease in a
communicable form, the disease not having been contracted from the
petitioner; or

15. (g) has been suffering from leprosy, the disease not having been
contracted from the petitioner; or
(h) has not been heard of as being alive for a period of seven years or
more by those persons who would naturally have heard of the respondent
if the respondent had been alive; or
and by the wife on the ground that her husband has, since the
solemnization of the marriage, been guilty of rape, sodomy or bestiality.
CASE LAWS:-
1. Dastane v. dastane AIR 1953 SC (JS, Cruelty , unsoundness of
mind)
2. Veena v. state government of NCT Delhi AIR 2011 SC (by mutual
consent )
3. Rajiv Dinesh Gadkari v.Smt. Nilangi Gadkari AIR 2010 (Cruelty)
4. Hirachand Srinivas Managaokar v. Sunanda AIR 2001(Non-
resumption of cohabitation after decree of JS)
5. Dr. Ashok Kumar Agarwal v. Smt.Anju Raje AIR 2010 (Adultery)

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