• Regarding Judicial Separation

Me and my spouse had agreed for mutual divorce for a permanent alimony of Rs 100000. I had already paid Rs 150000 as maintenance. But now I dont want to give her divorce as I had a 3.5 yrs old daughter residing with her. That is the reason I dont want to give her a divorce. Can I go for judicial separation? Is that valid for life long or valid for certain limited time period? She had already filed 2 FIRs under sections 323,506,511,341,406,498a IPC, DV, 125 crpc. I had filed a private complaint against her and her other 8 family members u/s 323,324 ipc. She got the poceedings stayed and we are fighting to get it vacated. High court ordered mediation and during that mediation she demanded only 1 lakh as permanent alimony. But I want to go for Judicial Separation. Marriage was solemnized under HMA
Asked 4 years ago in Family Law
Religion: Hindu

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9 Answers

Judicial separation is not a permanent remedy.  It's just a process. The stage will be always hanging.  If you don't divorce her she might file the same

Prashant Nayak
Advocate, Mumbai
31807 Answers
175 Consultations

4.1 on 5.0

It is in your interest to agree for divorce by mutual consent as she is demanding only rs 1 lakh as alimony 

 

2) if wife is agreeable go in for judicial separation 

 

3) it is better you settle the cases filed against each other 

 

4) in consent terms for divorce you can have clause for joint custody of your daughter 

Ajay Sethi
Advocate, Mumbai
94520 Answers
7485 Consultations

5.0 on 5.0

1. if you do not want to give divorce then you have got every right to refuse to her proposal for mutual divorce.

2. However to refuse divorce you need to go for judicial separation.

3. Without decree of divorce or filing a divorce proceeding the respective spouses can stay separately at will and for this no litigation for judicial separation decree is required.

4. Since the demand is only one lakh an there is likelihood for increase of this amount , it is wise if you agree for mutual divorce.

Devajyoti Barman
Advocate, Kolkata
22779 Answers
484 Consultations

5.0 on 5.0

Dear

You should not go for judicial separation.

If she is agreeing for mutual divorce then go for it and file a case for visitation rights of your daughter or make a clause regarding visitation rights in Mutual consent divorce petition.

Mohit Kapoor
Advocate, Rohtak
10687 Answers
7 Consultations

5.0 on 5.0

Dear Sir,

Judicial separation is always treated to be as an alternative to divorce. The basic difference between Judicial Separation and divorce is that divorce brings the marriage to an end whereas judicial separation does not.

The following information may kindly be read:

Judicial Separation law

Section 10 of Hindu Marriage Act provides for judicial separation. It provides that either party to a marriage can file a petition before the Court for such a relief on any of the following grounds:
(i) that the other party has had voluntary sexual intercourse with any person other than his or her spouse after solemnization of marriage;

(ii) that the other party has, after solemnization of the marriage, treated the spouse with cruelty;

(iii) that the other party has deserted the spouse for a continuous period of not less than 2 years immediately preceding the presentation of the petition;

(iv) that the other party has ceased to be a Hindu by conversion to another religion;

(v) that the other party has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the other party;

(vi) that the other party has been suffering from a virulent and incurable form of leprosy;

(vii) that the other party has been suffering from venereal disease in a communicable form; or

(viii) the other party has renounced the world by entering any religious order; or

(ix) the other party has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of him/her, had the party been alive;

In case of wife, she is entitled to the aforesaid relief of judicial separation on following two additional grounds also:
(a) that the husband has, since the solemnization of marriage, been guilty of rape, sodomy or bestiality;

(b) that a decree or order has been passed against the husband awarding maintenance to the wife under section 18 of Hindu Adoptions and Maintenance Act, 1956 or in proceeding under section 125 Cr.P.C and since the passing of the decree or order, cohabitation between the parties has not been resumed for one year or upwards;

(c) that her marriage was solemnized before she attained the age of 15 years and she has repudiated the marriage after attaining that age but before attaining the age of 18 years.

Alternate Relief in Divorce Proceedings

Even though either party to the marriage seeks decree of divorce, the Court may pass a decree for judicial separation and not a decree of divorce, if the Court considers it just so to do having regard to circumstances of the case.

No Alternative Relief

It may be mentioned that when decree of divorce is sought on the grounds mentioned in clauses (ii), (vi) and (vii) of sub-section (1) of section 13 instead of decree of divorce, decree for judicial separation cannot be passed. Clause (ii) provides for decree of divorce when other party has ceased to be a Hindu by conversion to another religion. Clause (vi) provides for decree of divorce when other party has renounced the world by entering 'any religious order. Clause (vii) provides for decree of divorce on the ground that the other party has not been heard of as being alive for a period of 7 years or more by those persons who would naturally have heard of him/her, had the party been alive.

What is the Effect of Decree of Judicial Separation?

Where a decree for judicial separation has been passed in your favour, it shall no longer be obligatory for you to cohabit with your spouse.

Rescinding of Decree of Judicial Separation

Where Court considers it just and reasonable and is satisfied on the application of either party i.e., either husband or wife, Court may rescind decree of judicial separation.

Netravathi Kalaskar
Advocate, Bengaluru
4952 Answers
27 Consultations

4.8 on 5.0

Yes JD can be as long both agree, but than after a year, she can take divorce on the ground of JD for a year.

Yogendra Singh Rajawat
Advocate, Jaipur
22596 Answers
31 Consultations

4.4 on 5.0

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.

 

Mohammed Mujeeb
Advocate, Hyderabad
19299 Answers
32 Consultations

4.7 on 5.0

You can go for judicial separation case also, it is yor decision, but if she is not agreeing for it then you may have to file a contested case only.

Once the court is granted judicial separation by a decree you can remain in the same manner for anytime you would like to remain, if at all you would like to seek divorce after two years on the basis of this judicial separation, you can get divorce.

 

 

T Kalaiselvan
Advocate, Vellore
84711 Answers
2172 Consultations

5.0 on 5.0

You can file suit for custody of child on ground for welfare of child alongwith suit for divorce or legal seperation.

Kallol Majumdar
Advocate, Kolkata
2837 Answers
14 Consultations

5.0 on 5.0

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