Marriage, in India, is a sacrament and therefore, we do not let it dissolve that easily. To let a marriage work, the Hindu Marriage Act allows judicial separation, a period during which the husband and wife stay away from each other and check if they can survive alone. This article focuses on judicial separation under Muslim law.
Judicial Separation: Meaning and Purpose
Judicial separation is a period (usually of one year) granted by the courts to those spouses who opt for divorce because of their unhappy marriage. Divorce is not an easy job in India and the couples have to undergo the period of judicial separation. Judicial separation is a period of one year or as decided by the court during which the spouses are directed by the court to stay away from each other with no contact at all and no emotional or physical relationship to allow the couple to understand if they are compatible without each other or not.
The essential purpose of judicial separation is to let the marriage between the spouses subsist while allowing them time to reconcile.
Once the parties feel that they have been drifted and their marriage is unable to work happily and it is inevitable to end the marriage, a decree of divorce can be obtained but, however, if the parties, later, want to reconcile and nullify their divorce, they have to remarry each other and cancel the divorce. Thus, to avoid the complications and to allow the parties sufficient opportunity to decide on the nullity of their marriage, the process of judicial separation was invented.
Difference between Judicial Separation and Divorce
Judicial separation is a previous stage of divorce and has several points of differentiation with divorce. These differences are:
- Marital Status: In the case of divorce, the spouses are divorced and not married. their marital status becomes single and all obligations of the parties towards each other as husband and wife ended with the decree of divorce. On the other hand, in case of judicial separation, the parties are still married and their marriage is still valid in the eyes of law. The parties cannot claim to be single unless the judicial separation is turned down by a decree of divorce.
- Provision for Remarriage: In case of divorce, the spouses are free to marry whoever they want once the decree has been obtained from the court. However, during the period of judicial separation, the spouses are considered to be married and the marriage has not lapsed because of their separation. Hence, neither of them can remarry during the period of judicial separation and any such action would amount to bigamy and adultery and punishable under the Indian Penal Code.
- Possibility of Reconciliation: In case of divorce, there is no possibility of reconciliation because the marriage has ended. However, if the partners still want to reconcile, they would have to marry again. On the contrary, the purpose of judicial separation is reconciliation. It aims to enable the spouses to stay away from each other, feel their need and try to reconcile their differences.
Judicial Separation under Muslim Law
Unlike the Hindu Law, a majority of Muslim personal law has not been codified and the rituals and laws work according to the Holy Quran and the Hadiths.
The Hindu Marriage Act, 1955 provides for judicial separation under Section 10 as a mechanism to dissolve the marriage with the provision to keep a one year time in hand for reconciliation. However, there is no such provision for judicial separation under the Dissolution of Muslim Marriage Act, 1939 or the Muslim Women (Protection of Rights on Marriage) Act, 1986, etc. The procedure for judicial separation has been used in practice though, as interpreted by the courts from time to time.
Grounds for Judicial Separation
In Ms. Jordan Diengdeh v. S.S. Chopra, the apex court observed that the grounds for divorce under Section 2 of the Dissolution of Muslim Marriage Act shall be the grounds for application for judicial separation as well. Accordingly, the grounds are:
- If the husband is missing and his whereabouts are not known for more than 4 years. For instance, if the husband is serving in the armed forces and went missing on a mission or if confident information is received that he has died in a battle but he returns after 5 years. In these cases, judicial separation can be obtained.
- If the husband does not maintain his wife and neglects her needs and requirements for a period of two years or more, the wife can apply for judicial separation.
- If the husband is convicted for any offence punishable with the minimum punishment of 7 years of imprisonment or for any other offence where he has been sentenced for 7 years of imprisonment, the wife can claim judicial separation.
- If the husband has abstained from fulfilling his marital obligations such as taking care of his wife and children, meeting the emotional and physical needs of the wife, for a period of three years or more, judicial separation can be obtained.
- If the wife founds out that her husband is impotent and the information was not disclosed to her during the marriage, she can file for judicial separation.
- If the husband suffers from leprosy or any other form of venereal disease which is likely to be communicable.
- If the husband married to a girl below the age of 15 years and the girl has repudiated or withdrawn herself from the marriage before attaining the age of 18 years, she can claim judicial separation.
- If the husband commits cruelty upon the wife, habitually beats her and tortures her, the wife can plead for judicial separation.
Process of Judicial Separation
Obtaining a decree of judicial separation is like obtaining a decree of divorce. The spouse who seeks judicial separation has to file a petition for judicial separation before the district court or the family court mentioning the ground or grounds under which judicial separation is claimed. If the court is satisfied with the grounds and the case is properly made out, the spouses can get judicial separation.
The wife is expected to leave the house of the husband and return to her parent’s home or any other place where is comfortable. If the wife does not have any place to go, the marital home must be given to the wife and the husband has to leave the marital home and find someplace to dwell.
Further, in general, the wife is liable to maintain herself and the amount paid for dower is also not returned during judicial separation. Until the decree for divorce is duly obtained by the spouses, the dower remains with the husband. However, in Sohan Lal v. Kamlesh (AIR 1984 P H 332), the Punjab and Haryana High Court clearly held that the wife is entitled to maintenance from the husband during judicial separation if she is unable to maintain herself. Thus, the rule also applies to Muslims as well.
- Saif Mehmood and Tahir Mehmood, Introduction to Muslim Law, 2 nd edition, 2017
- Akeel Ahmed, Introduction to Muslim Law, 2016.
 Ms. Jordan Diengdeh v. S.S. Chopra, AIR 1985 SC 935.