Divorce vs Legal Separation : What is the difference?


Posted On : February 22, 2022
Divorce vs Legal Separation : What is the difference?
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Introduction

Marriage is considered one of the most auspicious social institutions, especially in Indian society. A marriage is generally understood as the union of two persons, but the process leads to merger of two families for Indians. However, there are circumstances whereby, a marriage solemnized in revelry loses the track of a happy household. The two individuals who wished to live together as husband and wife no longer wish to continue together but to part their ways.

Marriage in India is governed by personal laws of Hindus, Muslims, Christians, etc. Hence, the provisions related to termination of the institution of marriage are also dealt with through personal laws. A divorce lawyer plays a crucial role at such times. The parties to divorce, i.e. the husband and wife might seek temporary relief (judicial or legal separation) or permanently cease the marriage through divorce. Before such a step, one should know the advantages and disadvantages of legal separation vs divorce. The article below deals with facets related to divorce vs legal separation.

Divorce vs Legal Separation

As mentioned earlier, divorce is a permanent end to a marriage, while judicial or legal separation is temporary suspension of marriage. The exact provisions applicable to parties to a marriage are provided in the religious or personal laws or the secular law which they should confirm through a divorce lawyer.
Technically, divorce may be understood as legal dissolution of marriage declared by a competent authority or court of law. However, a decree of judicial separation passed by a competent court allows the husband and wife to escape the obligation of cohabitation for a given period of time and reunite later.  

Grounds for Divorce and Judicial Separation

Marriage and divorce are subjects of civil laws in India. Disputes in a marriage are subject to legal remedies availed through a divorce lawyer. The grounds for divorce or judicial separation vary based on religion. The Hindu Marriage Act, Special Marriage Act, etc. provide grounds for both. Under the Muslim law, the concept is different because the husband is considererd superior and needless of a specific ground for divorce. The wife is granted the right to divorce on grounds specified under The Dissolution Of Muslim Marriages Act, 1939, but there is no separate provision for judicial separation in Muslim law. The table below specifies the various grounds for separation vs divorce in India based on a few personal laws.

Grounds for Divorce vs Legal Separation

Ground for divorce under Hindu Law (The Hindu Marriage Act (HMA), 1955[1])

  • Mutual consent
  • Adultery
  • Cruelty
  • Desertion (for 2 or more years)
  • Unsound mind
  • Ceased to be a Hindu/ Religious conversion
  • Venereal disease (in communicable form)
  • Renunciation of world
  • Not heard of being alive for 7 or more years
  • No resumption of cohabitation after 1 year of decree of judicial separation
  • No restitution of conjugal rights after 1 year of passing of decree of restitution of conjugal rights

Grounds of Legal Separation for Hindus

  • Adultery
  • Cruelty
  • Desertion (for 2 or more years)
  • Unsound mind
  • Ceased to be a Hindu/ Religious conversion
  • Venereal disease (in communicable form)
  • Renunciation of world
  • Not heard of being alive for 7 or more years

Additional ground for Hindu wife to seek divorce or judicial separation:

  • Bigamy before HMA, 1955
  • Husband guilty of rape/ sodomy/ bestialty
  • No cohabitation for 1 year while receiving maintenance through decree/ order
  • Denial (repudiation) of marriage before 18 years whereby marriage solemnized before 15 years of age

Ground for divorce in Muslim Law (The Dissolution Of Muslim Marriages Act, 1939[2])

  • Husband’s whereabouts unknown (for 4 or more years)
  • Husband neglected/ not provided maintenance (for 2 years)
  • Husband sentenced to imprisonment of 7 or more years
  • Husband failed to perform marital obligations for 3 or more years
  • Husband impotent at the time of marriage and continues
  • Husband insane for 2 or more years/ suffering from virulent venereal disease
  • Married before 15 years and repudiated before 18 years (Khayar-ul-Bulugh or Option of puberty)
  • Husband treats with cruelty
  • Any other ground recognized as valid under Muslim law

Grounds for Divorce under Christian Law (The Divorce Act, 1869[3])

  • Mutual consent
  • Adultery
  • Desertion (for 2 or more years)
  • Ceased to be Christian/ religious conversion
  • Incurable unsound mind for 2 or more years
  • Communicable venereal disease for 2 or more years
  • Not heard of being alive for 7 or more years
  • Refusal to consummation of marriage
  • Non-compliance to decree of restitution of conjugal rights for more than 2 years
  • Desertion (for 2 or more years)
  • Treated with cruelty or reasonable apprehension of harm
  • Additional ground for wife - If husband guilty of rape/ sodomy/ bestiality

Grounds of Judicial Separation for Christians

  • Adultery
  • Cruelty
  • Desertion (for 2 or more years)

Ground for Divorce under Special Marriage Act (The Special Marriage Act, 1954[4])

  • Mutual consent
  • Adultery
  • Desertion (for 2 or more years)
  • Undergoing imprisonment for sentence of 7 or more years as per Indian Penal Code, 1860
  • Cruelty
  • Incurable unsound mind
  • Communicable venereal disease
  • Not been heard alive for 7 or more years
  • No resumption of cohabitation after 1 year of judicial separation decree

Grounds of Separation under Special Marriage Act

  • Adultery
  • Desertion (for 2 or more years)
  • Undergoing imprisonment for sentence of 7 or more years as per Indian Penal Code, 1860
  • Cruelty
  • Non-compliance of decree for restitution of conjugal rights

Additional Grounds available to wife for both Divorce and Separation under Special Marriage Act:

  • Husband guilty of rape/ sodomy/ bestiality
  • No cohabitation for 1 year while receiving maintenance through decree/ order

Advantages and Disadvantages of Legal Separation vs Divorce

The benefits or drawbacks of putting a marriage on hold or to an end may vary for individuals. However, the important factors related to divorce and legal separation in India have been listed below.

Consequences of Divorce vs Legal Separation

Divorce

Judicial Separation

Permanent end to a marriage

Temporary suspension of marital obligations

Application for divorce can be filed after the passage of a certain period of time since the solemnization of marriage

Application may be filed at any time after the solemnization of marriage

Divorce is a two stepped process

Usually the first step towards divorce is judicial separation

After divorce, there is no scope for reconciliation

After legal or judicial separation, the parties may reunite

Subject to maintenance and alimony paid to wife after divorce

Subject to allowance paid to wife on legal separation

Note - Usually, judicial separation is also one of the grounds for divorce.


Why would you get a legal separation instead of divorce?

Apart from reconciliation, legal separation allows the parties to decide financial and child custodial disputes calmly without concern of any court timelines. That is one of the reasons why people prefer legal separation over divorce.

Hereby, it can be concluded that considering the norms of Indian society concerning the nature of marriage, courts also promote the idea of judicial separation over marriages. The mere difference of reconciliation of marital relation empowers the provision of separation vs divorce in India.

 

[1] Sections 10, 13 and 13B of Hindu Marriage Act, 1955.

[2] Section 2 of The Dissolution Of Muslim Marriages Act, 1939.

[3] Sections 10, 10A and 23 of The Divorce Act, 1869.

[4] Sections 23, 27, 27A and 28 of The Special Marriage Act, 1954.

Written By:
Ridhi Khurana

Ridhi Khurana

Gurgaon

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