Judicial Separation or Divorce: Choosing Between Section 10 and Section 13

Some of the people who consult me about ending a marriage are not, in fact, ready to end it. They want to live apart, they want the security of a court order on maintenance and the children, and they want time, but a divorce feels final in a way they are not prepared for, sometimes for personal or religious reasons, sometimes because of the children or the family. For them, judicial separation deserves to be considered properly rather than dismissed as an old-fashioned remedy.

What Judicial Separation Does

Under Section 10(2) of the Hindu Marriage Act, 1955, once a decree of judicial separation is passed it is no longer obligatory for the petitioner to cohabit with the other spouse. The marriage itself continues: neither spouse may remarry, and the legal relationship of husband and wife remains. For marriages under the Special Marriage Act, 1954 the corresponding provision is Section 23.

The Grounds Are the Same as for Divorce

Section 10(1) allows either spouse to seek judicial separation on any of the grounds on which a divorce may be sought under Section 13(1), such as cruelty or desertion, and a wife may also rely on the additional grounds available to her under Section 13(2). Judicial separation is therefore not an easier remedy to obtain; it is a different remedy on the same proof. See also the practice note on Divorce Matters.

Maintenance and the Children

A decree of judicial separation is a decree under the Act, so the court may award permanent alimony and maintenance under Section 25 and make orders for the custody, maintenance and education of the children under Section 26. While the petition is pending, interim maintenance and the expenses of the case may be sought under Section 24.

Undoing a Decree, or Turning It Into a Divorce

Section 10(2) allows the court, on the application of either spouse, to rescind the decree if it considers it just and reasonable to do so, for example where the couple have reconciled. If instead there has been no resumption of cohabitation for one year or more after the decree, Section 13(1A)(i) allows either spouse to petition for divorce on that ground alone, without proving the original fault again.

When the Court Grants Separation Instead of Divorce

Section 13A gives the court a discretion in some divorce cases to grant a decree of judicial separation instead, if it considers it just to do so in the circumstances. This does not apply to every ground; it is excluded for the grounds of conversion, renunciation of the world and presumption of death. It is a reminder that a divorce petition does not always end in a divorce.

When Judicial Separation May Suit a Family

• where one spouse has personal or religious objections to divorce;
• where the couple wish to live apart but are not ready to decide whether the marriage is over;
• where a legal separation with orders on maintenance and the children is needed now, and a divorce can wait; and
• where a spouse wants the option of a divorce later, on the simpler ground in Section 13(1A).

It is less suitable where either spouse wishes to remarry, or where a clean financial break is the priority. Where a spouse has instead left the home and the other wants them to return, the corresponding remedy is restitution under Section 9; see Restitution of Conjugal Rights.

Frequently Asked Questions