Detail of DIFFERENCE BETWEEN DIVORCE AND JUDICIAL SEPARATION

DIFFERENCE BETWEEN DIVORCE AND JUDICIAL SEPARATION

JUDICIAL SEPARATION

Judicial separation is a separation of husband and wife under orders of a court which puts an end to cohabitation, but not to the marriage itself. Husband or wife, any one of them, can have it by making an applicant to the District Court or High Court.

    The applicant, in order to have an application of judicial separation decreed in his/her favour, will have to prove any one of the following reasons:

1.      adultery, either of husband or of wife, or

2.      cruelty, either of husband or of wife, or

3.      desertion, either of wife or of husband without reason, for two or more years.

One who demands the reversal of the decree of judicial separation has to prove that there are reasonable grounds for such reversal.

 

                                                        DIFFERENCE BETWEEN DIVORCE AND JUDICIAL SEPARATION

 

            Judicial separation                                                              Divorce

Does not end the marriage.                                                          Ends the marriage.

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No party can enter into a second marriage                                   Both parties are free to entire into a second marriage.

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If during judicial separation, one of the parties                           If one of the party dies after divorce, then the decreased

dies, one has a right to succeed to the property                           party's property shall devolve upon deceased's heirs as per

of the deceased spouse.                                                                the personal law applicable to him/her. The other party       

                                                                                                     has no say in the deceased's property.

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This remedy is a soft one.                                                           Divorce is a quick and a deadly remedy which breaks a marriage.

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The parties can rejoin and live as husband and                          No chance of coming together except by performing a

wife.                                                                                            second marriage.

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Judicial separation as a cause for divorce

After a decree for judicial separation is made, the couple shall not live together or cohabit, but the marriage tie continues. If they remain in this state for one year, it will give them a cause for filing a petition of Divorce.

    Section 10 HMA provides for judicial separation. Judicial separation does not put an end to the marriage . The status of parties as husband and wife remains the same. The couple, after a decree is made, have time to reconsider the situation and to find out whether they can strike a compromise with their differences.

     Section 13 HMA requires cessation of cohabitation without cause and without consent thereto. It must be with an intention to abandon which is wilfully persisted for the statutory period. A mere severance of relationship is not sufficient since there may be separation without desertion and desertion without separation. Those who pray for judicial separation must have been legally married, if not, no judicial separation, as the section says, can be granted.

DIVORCE

Specific grounds for divorce

Adultery

Voluntary sexual intercourse with any person other than his or her spouse is the very first ground or reason for divorce. Intercourse by force or rape is not voluntary intercourse.

    Adultery can be proved by 

1.      circumstantial evidence,

2.      proof of husband's non-access and birth of a child,

3.      proof of contagious disease in private part, and

4.      admission and acceptance.

Under the HMA, strict proof of adultery, which is required under criminal law, is not there. It would be sufficient if it is shown that there was preponderance of probabilities for such an act.

Cruelty

Ground of "cruelty" for divorce has been added in the HMA by the amendments of 1976 as Section 13(1)(i-a).

     Mere austerity of temper, petulance of manners, rudeness of language, a want of civil attention and accommodation, even occasional sallies of passion, do not amount to legal cruelty. Harm or injury to health, reputation, working career or the like would be an important consideration in determining whether there was cruelty.

    Mental cruelty affects the mental or bodily health of the spouse on whom it is inflicted. Cruelty may be subtle or brutal, physical or mental. It may be by words, gestures or by mere silence. For being cruel, it is necessary that there must be intention to be cruel, intention must be aimed at the petitioner, and the conduct or acts constituting cruelty must emanate from the respondent.

    Cruelty cannot be predetermined by any rigid formula. In matrimonial relationship, it means absence of mutual respect and understanding between spouses which embitters the relationship. Sometimes it may take the form of violence or at times it may just be an attitude or approach of silence.

    Cruelty is a mixed question of fact and law.

    In N. G. Dastane (Dr.) v. S. Dastane, the court observed that ideal couple bears and condones disabilities of each other which is not the case with ordinary couples. Any conduct which affects the health, fitness, reputation, work, tec. of the other party is cruelty.

    Solitary instance of cruelty would not constitute cruelty so as to grant a decree for divorce,  rather the behaviour of the other party has to be persistently and repeatedly be such as to cause a reasonable apprehension in the mind of the husband or wife that it will be harmful or injurious for him or her to live with the other party. Continued ill-treatment, cessation of intercourse, studies neglect and indifference may lead to inference of cruelty.

 

Mental cruelty

Mental cruelty is conduct which causes and is intended to cause distress to one's spouse and which ultimately makes matrimonial life intolerable for the spouses, and cohabitation becomes impossible.

    Physical cruelty is often easy to comprehend but difficulty usually arises in considering what amounts to mental cruelty. Perhaps mental cruelty is lack of such conjugal kindness which inflicts pain of such a degree and duration that it adversely affects the health-mental or bodily - of the spouse on whom it is inflicted. Such acts could be varied and numerous. Cruelty may be subtle or brutal, physical or mental. It may be by words, gestures or by mere silence.

    In Shobha Rani v. Madhukar Reddi, it was held that intention is not a necessary ingredient of cruelty and cruelty can be intentional or unintentional. While physical cruelty is a question of fact or degree; for mental cruelty, the court has to look into two aspects, firstly, the nature of cruel treatment and, secondly, the impact of such treatment in the mind of the spouse, whether it caused reasonable apprehension that it would be harmful or injurious to live with each other. If the former is unlawful or illegal, then the court need not look at the mental effect it has on the innocent party. The court held that it has to be of such a nature that the parties cannot reasonably be expected to live together.     

    For cruelty to arise, it is not necessary that what has been said in Section 13(i-a) must happen; the crux of the problem is that a reasonable apprehension in the mind of the other spouse that it would be harmful or injurious to live with the other party, must arise.

Desertion

By the amendment of 1976, desertion has been for the first time included as a ground of divorce under Section 13(1)(i-b) HMA.

    In order to get divorce on the ground of desertion, following things need to be proved:

1.      one party has abandoned the other party;

2.      by abandoning, married life has ended and that is the intention behind abandoning;

3.      there is no reasonable ground for desertion;

4.      there is no consent of the person deserted;

5.      the deserted person has not given any cause to the deserter so that he/she may behave in this way; and

6.      desertion has been continuing for two years or more, before this application was made.

The animus deserendi has to proved and for that purpose, the applicant's conduct should be such that it does not provide any cause for desertion.

    In Bipinchandra Jaisinghbhai Shah v. Prabhavati, two things are to be seen: 1) facts and circumstances of the case, and 2) an intention to desert. The two things brought together make desertion. In desertion, the order party's consent is absent. It contains positive intention. To abandon home in the heat of the moment is no desertion in the eye of law.

    If a husband is guilty of desertion and his intention to desert her is proved, that will be desertion. Where 1) there is a breakdown of marriage and consequent desertion, or 2) wife has treated her husband cruelly, or 3) the wife has resided with her parents for the last eight years, desertion is proved.

 

Incurably of unsound mind or intermittent or continuous mental disorder

Section 13(1)(iii) HMA provides insanity as a ground for divorce. Insanity as a ground of divorce needs the fulfilment of the following two requirements:

1.      the respondent has been incurably of unsound mind, and

2.      he has been continuously or intermittently suffering from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.

If it is proved that the husband is suffering from incurable mental disorder, divorce can be obtained. For this purpose, medical evidence is necessary. Under these circumstances, if the court orders the respondent to undergo medical check up and submit a report thereof, it is not a breach of the respondent's personal liberty.

     In Ram Narain Gupta v. Rameshwari Gupta,  the court held that under Section 13(1)(iii) HMA, degree of mental disorder should be such that the spouse seeking relief cannot reasonably be expected to live with the other, therefore, all mental abnormalities are not recognised as grounds for grant of decree of divorce.

     In Kollam Chandra Sekhar v. Kollam Padma Latha, the Supreme Court held that temporary schizophrenia is not a ground for divorce. The form of mental illness she might be suffering from was not acute and held that if she was still suffering, then she should be given the right treatment.

 

Venereal disease in a communicable form

Venereal disease is a contagious disease that is typically acquired in sexual intercourse. Venereal means relating to sexual desire or sexual intercourse. Venereal disease is a ground for divorce under Section 13(1)(v) HMA. Under the HMA [S. 13(1)(v)], a spouse may present a petition for dissolution of marriage on the ground that the other spouse has been suffering from venereal disease in a communicable form.

     The most common form of venereal diseases are syphilis and gonorrhoea; of these two, the former is considered to be more dangerous. The burden of proof as to what venereal disease is there, and its type, has to be proved by the petitioner. To have to cohabit with wife in spite of such disease, is cruelty.

 

Conversion and apostasy

Divorce can be obtained if a Hindu abandons his religion and accepts some other religion, i.e. change of religion or conversion. if a Hindu converts to Muslim, Parsi or Christian religion, then he  becomes a convert, and not otherwise.  

     If one converts to another religion for remarriage, his first marriage subsists and, therefore, he becomes guilty of bigamy.

     If a married person withdraws himself from all worldly interests and converts to some other religious order, it is known as apostasy. This is a ground for divorce under Section 13(1)(ii) HMA, Becoming a recluse is a ground for divorce under Section 13(1)(iv). However, it must be remembered that the abandonment must be complete.

    The petitioner for divorce must prove two things here:

1.      that the other spouse has renounced the world, and

2.      that he has entered into a holy order.

 

Virulent and incurable form of leprosy

Under Hindu Law, leprosy is a ground for divorce under Section 13(1)(iv) HMA, but it has to satisfy two conditions: 1) it should be virulent (a disease extremely harmful and spreading very quickly), and 2) it should be incurable.

 

Disappearance

Section 13(1)(vii) HMA applies the same abovementioned rule of the Evidence Act, 1872, If one of the spouse is not heard of for seven years or more by anyone who would have naturally heard of him otherwise, a presumption of death of that missing spouse is raised and the other spouse can get divorce on this ground. If after seven years the other living spouse marries, he or she would not to guilty of bigamy. The marriage is valid in such a case.

 

Husband guilty of rape, sodomy, bestiality

Section 13(2)(ii) HMA provides additional grounds of divorce to the wife, one of which is that after solemnisation of marriage husband has been guilty of rape, sodomy or bestiality.

      Attempt to rape must amount to cruelty to wife and the wife can sue for divorce. Mere attempt by the husband to perform sodomy will amount to cruelty to wife and the wife can sue for divorce. Mere attempt by the husband to perform sodomy will amount to cruelty to wife and the wife can sue her husband for divorce on the ground of cruelty.

     Consent of the wife is immaterial. Even if consented, it is a crime under IPC; and under Section 23 HMA or Section 34 SMA, condonation would not apply to this ground.

     If parties are living separately either under an agreement or under a decree of court and the husband forces sexual intercourse on his wife, he will be guilty of rape and wife can sue him for divorce.

 

Non-compliance of restitution of conjugal rights decree

Section 13(1-A)(i) HMA provides divorce on the grounds that there has been no restitution of conjugal rights for one year or upwards after passing of the decree of restitution of conjugal rights

 

Repudiation of marriage

Section 13(2)(iv) provides repudiation of marriage as a ground for divorce only to the wife. According to the section if her marriage was solemnised before she attained the age of 15 years, she can repudiate the marriage after attainting the age of 15 years but before attaining the age of 18 years.

 

No resumption of cohabitation after decree of judicial separation

Section 13(1)(1-A)(i) HMA provides divorce on the ground that there has been no resumption of cohabitation for one year or upward after passing of the decree of judicial separation.

 

Bigamy

Section 13(2)(i) HMA provides divorce on this ground. It runs as:

      13. Divorce. -

...

      (2) A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground, -

          i.     in the case of any marriage solemnized before the commencement of this Act, that the husband had married again before such commencement or that any other wife of the husband married before such commencement was alive at the time of the solemnization of the marriage of the petitioner:

     Provided that in either case the other wife is alive at the time of the presentation of the petition;...

 

Unsoundness of mind at time of marriage

It is not a ground for divorce, as such marriages are voidable under Section 12(1)(b) HMA.

 

Wife pregnant at the time of marriage

It is not a ground for divorce, as such marriages are voidable under Section 12(1)(d) HMA.

 

Husband impotent at time of marriage

It is not a ground for divorce, as such marriages are voidable under Section 12(1)(a) HMA.

 

Divorce by mutual consent

Section 13-B HMA provides for divorce by mutual consent. For divorce by mutual consent, an application shall have to be presented to the District Court by both the parties.

    Section 13-B(2) lays down:

     13-B. Divorce by mutual consent.-

     ...

     (2) On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.

Six months' waiting period is mandatory for divorce and only in rare cases the statutory period has been waived.

   The period of living separately for one year must be one immediately preceding the submission of the application to the court. The parties should have no desire to perform marital obligations. The consent given should not be obtained by fraud. If the wife is not willing to consent, there could be unilateral withdrawal of consent. Unless there is a complete agreement between parties for dissolution of marriage and unless court is completely satisfied in respect thereof, it cannot grant decree of divorce by mutual consent.

 

Irretrievable breakdown of marriage

The basic postulate of breakdown theory is that if a marriage has broken down without any possibility of repair then it should be dissolved, without looking to the fault of either party.

Intention to bring cohabitation permanently to an end

In Naveen v. Neelu Kohli, the court said that where parties have separated and the separation has continued or lasted for a very  long time and one of them presents a divorce petition, the court should make a serious attempt to bring the parties together. However, if even then no result comes out, it can well  be presumed that the marriage has broken down. If this breakdown is irreparable, divorce should not be withheld. If the court preserves an unworkable marriage, it is bound to give rise to a greater source of misery for the parties.

    There is no acceptable way in which a spouse can be compelled to resume life with the consort, nothing is gained by trying to keep the parties tied forever to a marriage that if fact ceased to exist.

    In Anil Kumar Jain  v. Maya Jain, the Supreme Court held that although irretrievable breakdown of marriage is not a ground under Section 13 or Section 13-B HMA for grant of divorce but when a proceedings under either Section 13 or Section 13-B HMA are before Supreme Court, it can invoke the said doctrine and grant relief to the parties in exercise of extraordinary power under Article 142 of the Constitution.

 

Bar to matrimonial relief

Accessory

Section 23(1)(b) HMA provides that this bar shall apply only when a petition for divorce has been filed on the ground of adultery. In other words, if the petitioner actively helps the respondent in the act of adultery, he cannot proceed against the respondent as he/she acted as an accessory in the act.

Connivance

Connivance means where a person knows that a wrongful act is being done or is to be done, and the person he or she either assists, or where the person is under duty to interfere, does not interfere or prevent it, in that case it is said that the person has connived. Connivance is bar to matrimonial offence of adultery under the HMA.

Condonation

Condonation has two important elements: forgiveness and reinstatement; therefore, in condonation the innocent spouse must forgive and reinstate the guilty spouse to the same position she or he occupied before the offence was committed. Condonation obtained by fraud is of no consequence. Under the HMA condonation is a bar to the matrimonial relief of adultery and cruelty.

Collusion

Collusion is an agreement or understanding between the parties to present a petition to put forward true facts in support of a false case, or false facts in support of a true case; or, to suppress facts which would prevent, or tend to prevent, the court granting a divorce. Section 23(1)(c) HMA provides collusion as a bar to matrimonial relief and the court has to satisfy itself that the petition has not been presented in collusion.

Taking advantage of one's own wrong

Under the HMA, it applies to all the matrimonial causes except to the petition for annulment of marriage on the ground of incapacity to give consent. This bar is based on the doctrine that one who comes to the court must come must come with clean hand. It means that if petitioner is directly or indirectly responsible for respondent's wrong, the petition cannot be granted.

 

Improper or unnecessary delay

Improper and unreasonable delay is a bar to matrimonial relief under the HMA provided under Section 23(1)(d) to the Act. It applies to those cases where definite period of limitation is not laid down in the Act. The equitable doctrine of laches is applied by the court whereby if the delay is reasonably and properly explained to the satisfaction of the court, it grants the matrimonial relief. However, if it is not reasonably explained, the satisfaction of the court, it grants the matrimonial relief. However, if it is not reasonably explained, the delay would act as a bar to the matrimonial relief sought by the petitioner.