Judicial Separation as a Matrimonial Remedy- A Lesser Evil than Divorce Under Indian Law

Traditionally marriage is considered a sacred and in dissolvable sacrament in Hindu Law and it is not just a contractual relationship. Nonetheless, as social realities change and more couples experience more matrimonial conflicts, the Indian matrimonial law has been able to slowly add some remedies that put the sanctity of marriage in check with individual rights and dignity. Judicial separation is one of such solutions which is a statutory remedy that lies in between marital cohabitation and divorce dissolution of marriages. The present paper will provide an in-depth discussion of the concept of judicial separation in the context of the Indian law and specifically in the case of the Hindu Marriage Act, 1955 and its relative stand in the Special Marriage Act, 1954. The paper examines the legal framework of judicial separation, its origins regarding history, statute and judicial application. It holds an imperative analysis on the numerous grounds that can be used to seek judicial separation like cruelty, adultery, desertion, conversion, mental disorder, venereal disease, renunciation and presumption of death, and the exclusive grounds that wives have. The paper, through the review of major judicial rulings, brings out the interpretation of these grounds and how the courts have put them to practice. In addition, the paper explains the legal implications of a decree of judicial separation, especially its effects on marital duties, right of inheritance, remarriage, maintenance and proprietary rights including stridhan. The paper also creates a clear differentiation between judicial separation and divorce, and the reason that judicial separation, in most cases, is actually considered by courts as a lesser of the evils as compared to divorce. It states that the benefit of judicial separation is a valuable socio-legal role of giving the spouse a time to think and the chance of reconciliation and thus saving the marriage institution where possible. The research finds that judicial separation is an important and a humane matrimonial remedy and particularly in the society where divorce is still socially stigmatized and emphasizes its application in the modern Indian family law jurisprudence.