Difference Between Legal Separation Vs Divorce? Legal Separation Vs Divorce Pros & Cons ?

ByLegal-Varta

Jan 12, 2023

Table of Contents

Introduction

The current situation between the spouses involves little disagreements over their levels of tolerance for one another, which pushes them further away from a happy marriage. Instead of the same, we hereby take a look at the possibilities provided by our judicial system in the event that a couple finds themselves in an intolerable circumstance where Legal Separation vs Divorce is their only remaining option.

Sometimes a spouse in pain is unable to comprehend what must be done or whether divorce is the best course of action in such cases the spouse of couple seek the legal advise on which one to go from Legal Separation vs Divorce. Let’s look at the available remedies under the Indian legal system in reference to Legal Separation vs Divorce.

Marriage (Vivaha) is a sacred union of two people that transcends this world entirely. The ego is prioritised in relationships in the nuclear family context of today. The main goals of any connection are always who, what, and what, but the harshness of words is always kept in mind.

According to the Vedic Sanskriti of Indian culture, marriage is regarded as the second stage of Ashramas (Hindu). It is a samskara as well as a required obligation (dharma) (sacrament). This stage refers to the person’s married life, which included responsibilities for running a home, establishing a family, educating children, and leading a family-centered and morally upright social life.

In a sociological framework, the Grihastha stage was seen as the most significant stage because people living in this stage not only pursued virtue but also produced the riches and food necessary to support people in later phases of life as well as the progeny that would carry on mankind. The stage also represented one where the most intense physical, sexual, emotional, occupational, social and material attachments exist in a human being’s life.

What is Separation and What is Divorce as per Law to decide out of Legal Separation vs Divorce?

“Hindu Marriage Act, 1955” shares two remedies available under the act about Legal Separation vs Divorce:

a) Separation (Judicial Separation)

b) Divorce. One side where Hindu Marriage Act, 1955 gives the provisions to anybody to have the marriage to be solemnized and registered under it vis-a-vis it gives the remedy available on the other side to be apart in case the marriage is not left with any other option.

Major difference between both is Judicial separation does not terminate the marriage, whereas in divorce the parties are no longer husband and wife. The marriage ends.

What is Judicial Separation?

“Judicial Separation” (As per Hindu Marriage Act, 1955)

Judicial separation is an instrument devised under law to afford some time for introspection to both the parties to a troubled marriage towards each other. Law allows Golden opportunity to both the husband and the wife to think about the continuance of their relationship while at the same time directing them to live separate, thus allowing them the much required space and independence to choose their path.

Separation (Judicial Separation) : U/s 10 of Hindu Marriage Act, 1955 it states Judicial Separation as below -:

“(1) Either party to a marriage, whether solemnized before or after the commencement of this Act, may present a petition praying for a decree for judicial separation on any of the grounds specified in sub-section (1) of section 13, and in the case of a wife also on any of the grounds specified in sub-section (2) thereof, as grounds on which a petition for divorce might have been presented.

(2) Where a decree for judicial separation has been passed, it shall no longer be obligatory for the petitioner to cohabit with the respondent, but the court may, on the application by petition of either party and on being satisfied of the truth of the statements made in such petition, rescind the decree if it considers it just and reasonable to do so.”

Note

“Where a decree for judicial separation has been passed, it shall no longer be obligatory for the petitioner to cohabit with the respondent, but the court may, on the application by petition of either party and on being satisfied of the truth of the statements made in such petition, rescind the decree if it considers it just and reasonable to do so out of Legal Separation vs Divorce.

What is Divorce?

“Divorce” (As per Hindu Marriage Act, 1955)

Divorce is dissolving the marriage with given guidelines under different marriage acts. Under Hindu Marriage Act, 1955 the divorce can be seek U/s 13 of Hindu Marriage Act, 1955. There is no look back once the decree of Divorce is ordered.

Note

Besides, Divorce among Hindus, Buddhists, Sikhs and Jains is governed by the Hindu Marriage Act, 1955, Muslims by the Dissolution of Muslim Marriages Act, 1939, Parsis by the Parsi Marriage and Divorce Act, 1936 and Christians by the Indian Divorce Act, 1869. All civil and inter-community marriages are governed by the Special Marriage Act, 1956 out of Legal Separation vs Divorce.

What are the Differences Between Legal Separation vs Divorce?

The major difference between Legal Separation vs Divorce can help any individual seeking remedy shall help making right decision

1. Judicial separation does not terminate the marriage, whereas in divorce the parties are no longer husband and wife. The marriage ends.

2. While undertaking case proceedings for judicial separation the court does not have to consider that the marriage is permanently broken down or has come to an end, whereas in divorce it is required while presenting the petition with intention and outcome of finality of divorce.

3. Judicial separation goes through a one-step judgement procedure whereas divorce goes through a two-stage judgement process.

4. A judicial separation is like a “trial divorce” where the couple can live separately for a period of one year and understand whether leaving apart is the right solution or they should think for restitution. Further, during this period they can decide whether they are actually hopelessly incompatible as a couple or are just going through a bad phase due to some ego clashes or real victim of some misunderstanding in their marriage which could be easily sought out.

The option of Judicial separation gives hope to people that they still have a shot at saving their marriage and avoiding the painful experience of divorce out of Legal Separation vs Divorce.

What are the Grounds of Judicial Separation?

The decree of Judicial separation can be ordered on any of the grounds specified in sub-section (1) of Section 13, Whereas the Divorce has all the grounds shared U/s 13 of Hindu Marriage Act, 1955. Below details could be useful to understand more out of Legal Separation vs Divorce:-

Hence, judicial separation can be had on any of the following grounds:

Adultery
Cruelty
Desertion
Apostasy (Conversion of religion)
Insanity
Virulent and incurable form of leprosy
Venereal disease in a communicable form
Renunciation of world by entering any religious order
Has not been heard of as being alive for seven years

If the person applying for judicial separation is the wife, then the following grounds are also available to her:

Remarriage or earlier marriage of the husband but solemnized before the commencement of Hindu Marriage Act, 1955, provided the other wife is alive at the time of presentation of petition for judicial separation by the petitioner wife.
Rape, sodomy or bestiality by the husband committed after the solemnization of his marriage with the petitioner.
Non-resumption of co-habitation between the parties till at least one year after an award of maintenance was made by any court against the husband and in favour of the petitioner wife.
Solemnization of the petitioner wife’s marriage with the respondent husband before she had attained the age of 15 years provided she had repudiated the marriage on attaining the age of 15 years but before attaining the age of 18 years.

What Are the Landmark Judgements by Hon’ble Court of India?

SC Cuts Down Waiting Period for Divorce Under Hindu Law by Six Months

“CASE: AKANKSHA PETITIONER(S)–VERSUS–ANUPAM MATHUR RESPONDENT(S) Case No. 747/2018 (SC)”

It waived the period between first motion and the second motion observing that there is no point in requiring the parties to wait for another six months. “Having regard to the background of the litigations between the parties, we are convinced that there is no point in requiring the parties to wait for another six months. Accordingly, the period between first motion and the second motion is waived.”

In a judgment delivered a year ago, a two-judge bench of Supreme Court comprising Justices AK Goel and UU Lalit held that the 6-month waiting period prescribed under Section 13B(2) of the Hindu Marriage Act for divorce by mutual consent is not mandatory, and can be waived off under certain circumstances

Law on Mental Cruelty

“CASE: Rajiv Chhikara vs. Sandha Mathu”

The Division Bench of Delhi High Court opined that resiling from a settlement amounts to mental cruelty. The Court in the case observed that the parties had been living separately since 2009 and their relationship was beyond repair. Hence in such circumstance one spouse insists of retaining the matrimonial bond then the same would be like putting the spouse under intense situation of mental cruelty.

What are the Pro & Cons of Legal Separation vs Divorce?

In India, there are two legal ways to dissolve a marriage: Legal Separation and Divorce. However, there are some significant distinctions between Legal Separation vs Divorce:

Pros of Separation

Allows couples to live apart without ending the legal status of their marriage
Can be less emotionally and financially costly than divorce
Can provide a cooling-off period for couples to consider reconciliation
Can be a less formal process than divorce, with fewer legal requirements

Cons of Separation

Does not provide a legal end to the marriage, so couples cannot remarry
Does not settle any financial or property disputes between the couples
May not provide the emotional closure that some people need to move on

Pros of Divorce

Provides a legal end to the marriage, allowing couples to remarry
Settles any financial or property disputes between the couples
Can provide emotional closure for people who want to move on with their lives

Cons of Divorce

Can be emotionally and financially costly
Can be a long and stressful legal process
May be emotionally difficult for children if they are involved
Can be a social stigma in some communities

Conclusion

Legal Separation vs Divorce are seen differently in India in terms of cultural standards and social acceptance. In many facets of Indian society, divorce out of Legal Separation vs Divorce is still stigmatised and frequently viewed as a sign that the marriage has failed. Even in circumstances of violence or infidelity, many families and communities may put pressure on couples to remain together.

In Separation when to decide Legal Separation vs Divorce, on the other hand, is more socially acceptable in India because it is viewed as a way for couples to live apart and settle their problems prior to choosing a divorce out of Legal Separation vs Divorce. Separated couples may occasionally be permitted to interact socially as long as they continue to live apart.

The idea of separation out of Legal Separation vs Divorce isn’t often fully understood or accepted, especially in rural cultures. Even cohabiting may be viewed in such circumstances as forbidden.

In general, different regions, communities, and family values may have quite different perspectives on Legal Separation vs Divorce in India. While social approval is vital, it is crucial to remember that the wellbeing and safety of the parties involved should come first when deciding out of Legal Separation vs Divorce.

Disclaimer

The views expressed in the blogs are purely the authors’ own, and they are not intended to offend anyone or to be prejudicial toward or against any individual, group of individuals, society, sex, gender, race, creed, nation, or religion, or any other term that is even remotely and closely connected. Legal-Varta is a platform for disseminating knowledge so that everyone can comprehend the legal system better. In order to avoid any misrepresentation and since it is even not advisable to do so, only content that is directly related to the Law and Statute is included in the articles. If any misrepresentation is discovered, however, we are willing to amend it because it is only for everyone’s advantage.