• Divorce after judicial separation

Dear Advocates,

We are separated from July 2012 and I am the petitioner 
I had filed for Divorce in 2013 on Cruelty ground, I got a Judicial Separation from Family court in April 2018. Though I had strong reason and proofs for divorce, I got only Judicial separation
So my Question is : Should I go for a Appeal to high court, or wait for an year and apply for Divorce 
I am in dilemma, kindly advise

 Regards
Anuradha
Asked 5 years ago in Family Law
Religion: Hindu

2 answers received in 30 minutes.

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16 Answers

1. You are free to challenge the decree in the High Court and pray for passing of a decree of divorce, albeit without perusal of pleadings and judgment of the family court I cannot comment on the merits of the case.

2. To obtain unambiguous legal opinion consult a lawyer with pleadings and judgment of the court.

Ashish Davessar
Advocate, Jaipur
30763 Answers
972 Consultations

5.0 on 5.0

It's depends upon your prayer of the said petition even averments on divorce ground and supported document and also you can file Appeal before High court. All the best.

C. V. Jadhav
Advocate, Bangalore
545 Answers
18 Consultations

4.7 on 5.0

1. Did you apply for alternative for judicial separation also in the divorce suit.

2. if not then the court can in no way grant you a relief you you never prayed for.

3. in that case preferring an appeal makes your case much a bright prospect and hence you must for go for it.

4. If not then waiting for one year and then go for divorce is good option though preferring an appeal against the grant of judicial separation would do no harm.

5. Without seeing the case papers it is quite difficult to comment on the merit of the appeal otherwise.

Devajyoti Barman
Advocate, Kolkata
22779 Answers
484 Consultations

5.0 on 5.0

Dear Madam,

It is better to wait for one year and after completion of judicial separation you can get divorce very easily. The law is as follows.

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Marriage is one of the most important social institutions of human society. Marriages are decided in heaven and arranged on earth. It is a solemn practice which involves two individuals. But sometimes two people fail to coordinate with one another which might lead to adverse circumstances. According to Hindu marriage act 1955 section 13 part 1 either party can apply for a decree of divorce on the grounds specified in the section A wife has additional rights to apply for dissolution of marriage under section 13 part 2.Judicial separation is quite different from divorce. While in divorce all the rights and duties of a couple towards one another come to an end. In judicial separation only cohabitation ends other rights and duties still exist. A couple is free to reside under different roof after judicial separation but still has certain rights and duties.

Sometimes a person needs to give time and space to themselves and their spouse. This can help in self realisation, self analysis and also understand the value of the partner. Inferring and judging the faults of oneself is a big step towards a sunny future. While in judicial separation there is the option to reconcile and restart things , once divorced the whole marriage is over and remarrying is the only option(marriage has to be solemnized again with the same person)

A very major issue that comes to forefront when filling divorce is custody of child/children. Applying for custody is again a long battle which has to be fought with whole mind, body and soul. If a couple is judicially separated both have equal rights upon the kids.

A judicially separated wife has similar property rights as a married wife. Once divorced the spouse looses all the rights upon each other and their belongings. All the conjugal rights (matrimonial rights between a husband and a wife) exists during the subsistence of judicial separation. If a spouse dies during the period of judicial separation the other inherits the property provided there is no will.

There can be a situation when both the partners in the marriage have reached the highest hierarchy of Maslow’s triangle (Abraham Maslow’s theory of self actualization) and are seeking for legal separation .Alimony, maintenance and remarrying are not their priorities. Such couples can seek judicial separation and let the kids be out of this separation battle.

This is the most interesting reason amongst all. If you are well aware about your partner’s chakkar you can apply for judicial separation and if the spouse remarries he/she can be charged under bigamy which might give a lot of benefits to the other partner (provided your partner is so eager to remarry)

It is a common practice in glitzy world of bollywood to tie the knot and part ways. But a few of them have proved this notion wrong .Hritik and Susanne who recently planned to split up have kept their slate clean off all sorts of controversy. They are judicially separated but haven’t filed for divorce as yet .Anurag Kashyap and Kalki Koechin, due to their mutual problems have decided to take some time off from each other and resolve their issues

Divorce is permanently dissolving the marriage while judicial separation is temporarily barring it. Divorce puts an end to a relationship forever. The answer to cruelty, violence, torture, mental turmoil is divorce and one should not refrain from ending such an abusive relationship. Judicial separation is like giving a second chance to your better half. Every person should the love blessings in their lives and maybe it’s worth more than ending the relationship without giving it another attempt to workout. As we all know it each person in our life is either a blessing or a lesson…what are you for your partner….?

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Dear Madam,

You will get judicial separation. The procedure is as follows. The alimony formala is given at the end.

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AdvocateKhoj

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Special Marriage Act, 1954

23. Judicial separation

(1) A petition for judicial separation may be presented to the district court either by the husband or the wife,-

(a) on any of the grounds specified 17[in sub-section (1) 18[and sub-section (1A) of section 27] on which a petition for divorce might have been presented; or

(b) on the ground of failure to comply with a decree for restitution of conjugal rights;

and the court, on being satisfied of he truth of the statement made in such petition, and that there is no legal ground why the application should not be granted, may decree judicial separation accordingly.

(2) Where the court grants a decree for judicial separation, it shall be no longer 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.

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Judicial Separation and Divorce in India as per Hindu Marriage Act

Judicial separation is a sort of a last resort before the actual legal break up of marriage i.e. divorce. The reason for the presence of such a provision under Hindu Marriage Act is the anxiety of the legislature that the tensions and wear and tear of every day life and the strain of living together do not result in abrupt break – up of a marital relationship. There is no effect of a decree for judicial separation on the subsistence and continuance of the legal relationship of marriage as such between the parties. The effect however is on their co-habitation. Once a decree for judicial separation is passed, a husband or a wife, whosoever has approached the court, is under no obligation to live with his / her spouse .

The provision for judicial separation is contained in section 10 of the Hindu Marriage Act, 1955. The section reads as under:

A decree for judicial separation can be sought on all those ground on which decree for dissolution of marriage, i.e. divorce can be sought.

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

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

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 solemnised 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.

It is on all the above grounds that judicial separation can be sought. The first 9 grounds are available to both the husband and the wife but the last four grounds are available only to the wife. It is to be noted that it is on these grounds that divorce is also to be granted. It has been held that unless a case for divorce is made out, the question of granting judicial separation does not arise. Therefore, the Courts while dealing with the applications for judicial separation shall bear in mind the specific grounds raised for grant of relief claimed and insist on strict proof to establish those grounds and shall not grant some relief or the other as a matter of course. Thus on a petition for divorce, the Court has discretion in respect of the grounds for divorce other than those mentioned in section 13 (1A) and also some other grounds to grant restricted relief of judicial separation instead of divorce straightway

if it is just having regard to the facts and circumstances.

Another question that arises is of decree of maintenance vis-à-vis decree for judicial separation. Where a decree for judicial separation was obtained by the husband against her wife who had deserted him, the wife not being of unchaste character nor her conduct being flagrantly vicious, the order of alimony made in favour of the wife was not interfered with by the Court.

ILR (1964) 2 Punj 732.

The Punjab and Haryana High Court has also held that a reading of sec 24 and 26 (maintenance) does not show that if a petition under section 9, 10 12 or 13 is disposed of, the jurisdiction of the court to award maintenance pendent lite by an order to be passed is taken away.

AIR 1981 Punj 305 ; 1981 Hindu LR 345

The above decisions go on to show that even where a decree for judicial separation is passed in favour of the husband, maintenance may still be awarded to a wife and judicial separation is no defence to a claim for maintenance under Hindu Marriage Act.

Though section 10 of the Hindu Marriage Act does not provide any time as to how long judicial separation can last. But section 13 of the Act provides that if there is no resumption of co-habitation between the parties one year after the decree for judicial separation is passed, the parties can get a decree for divorce on this ground itself. But divorce on this ground will be given only when one year has expired after the passing of the decree for judicial separation and not earlier. The reason for this is that one year is a long period and it provides sufficient time to the parties for reconciliation or to arrive at a decision. If the parties fail to overcome their differences within this period, then there is no fun in allowing the legality of the marriage to just linger on when in substance the relationship of marriage has long expired.

It is to be noted, however, that if the parties do agree to resume co-habitation any time after the passing of the decree for judicial separation, they can get the decree rescinded by applying to the court. The Act does not refer to any specific grounds on which a decree for judicial separation can be annulled or rescinded. Section 10(2) however, empowers the Court to rescind the decree for judicial separation if it considers it just and reasonable to do so. However Courts have repeatedly warned that this power of rescission has to be exercised with great circumspection and not in a hurry and only after satisfying themselves that it would be just and reasonable to allow such rescission.

Kishan Dutt Kalaskar
Advocate, Bangalore
6135 Answers
483 Consultations

4.8 on 5.0

The court passed a judicial separations after varying the facts and circumstances . You can file appeal in the High Court and pray for passing of a decree of divorce.

It has been held that unless a case for divorce is made out, the question of granting judicial separation does not arise. Therefore, the Courts while dealing with the applications for judicial separation shall bear in mind the specific grounds raised for grant of relief claimed and insist on strict proof to establish those grounds and shall not grant some relief or the other as a matter of course. Thus on a petition for divorce, the Court has discretion in respect of the grounds for divorce other than those mentioned in section 13 (1A) and also some other grounds to grant restricted relief of judicial separation instead of divorce straightway.

So scrutiny of the order is necessary for find out why the court pass such a Judicial Separation other than Divorce.

Ajay N S
Advocate, Ernakulam
4072 Answers
110 Consultations

5.0 on 5.0

You should wait for year and then file for divorce

2) if you file an appeal it would take 10 years to be disposed of

Ajay Sethi
Advocate, Mumbai
94520 Answers
7485 Consultations

5.0 on 5.0

Both the options are open and you may decide as per your requirement tips to marry again then you can go to the High Court against separation orders

Vimlesh Prasad Mishra
Advocate, Lucknow
6852 Answers
23 Consultations

4.9 on 5.0

Sir your petition for the divorce and order need to be perused for opinion on this as Judicial separation and divorce are grounded on same grounds and no court grants judicial separation in a matter wherein divorce is prayed. Or either in your case Judicial separation was prayed for alternatively.

So kindly reproduce the order and the pleadings further in case if there was judicial separation prayed then you should wait for a year to go for divorce.

Shubham Jhajharia
Advocate, Ahmedabad
25514 Answers
179 Consultations

5.0 on 5.0

Firslty, I advice you to workout vesting a single minute you should approach the high court under appeal.

Secondly, as judicial separation is also a from of divorce, but not what you wanted.

Thirdly, if you happen to get the same in the ground of cruelity then you may be saved from monetary burden to give her.

Sanjay Baniwal
Advocate, South Delhi
5473 Answers
13 Consultations

5.0 on 5.0

Dear Concerned,

You are separated since 2012 and now been living separately by virtue of judicial separation, You might be suggested for Revision - However It is better to wait for 1 year period when this judicial separation be used for finallity of divorce.

Best of Luck

Atulay Nehra
Advocate, Noida
1308 Answers
58 Consultations

5.0 on 5.0

Hi, you can file a appeal in high court against the sessions court order...

Hemant Chaudhary
Advocate, Gurgaon
4630 Answers
67 Consultations

4.9 on 5.0

hello

you should appeal the decision of the family court if the order granting judicial separation has some legal infirmities and facts and circumstances of the case were not seen in the proper perspective. the order along with the petition should be perused by a lawyer in order reach a correct decision.

I would advise you to appeal as you had strong evidence and that is why you filed for divorce. the court should have taken that including a strong desire for separation, into consideration.

regards

Rahul Mishra
Advocate, Lucknow
14081 Answers
65 Consultations

5.0 on 5.0

Mam, very sorry for that.

The above two points will remain same, but with respect to third point Mam, if you may be able to succeed on the ground of cruelity then there are chances that you may get some more amount as in alimony.

With regards

Sorry Mam...!

Sanjay Baniwal
Advocate, South Delhi
5473 Answers
13 Consultations

5.0 on 5.0

Dear Client,

If in relief, you have prayed for divorce and granted JS, valid ground for appeal in High Court,

Filling appeal will have no repercussion. If relief granted well and good, otherwise, period of one is running simultaneously.

But don`t seek stay on J S order, let it effective during pendency of appeal.

Yogendra Singh Rajawat
Advocate, Jaipur
22596 Answers
31 Consultations

4.4 on 5.0

1. If you file for divorce then you would be approved judicial separation immediately.

2. The divorce would go on for multiple motions, based on contested / ex-party divorce.

3. Check with you advocate on current status of your divorce case.

Niranjan
Advocate, Bangalore
844 Answers
9 Consultations

4.9 on 5.0

By the time your appeal is processed and you will get the appeal disposed it may take more than a year also , hence you may better wait for that period and file a divorce case.

However who sought for judicial separation?, because the court may not pass suo motu orders for judicial separation when this relief was not sought for by either of the party.

If so, you may approach high court with an appeal.

T Kalaiselvan
Advocate, Vellore
84711 Answers
2172 Consultations

5.0 on 5.0

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