Judicial Separation Under Special Marriage Act of 1954

Prior to the Reformation, it was illegal to divorce in England due to the church's view of marriage as a sacrament and English law. The parties to a legally binding marriage were given a "divorce a men's et thoro," or divorce from support, by the ecclesiastical courts, who also prohibited the parties from getting remarried.

Since it didn't end the marriage, this solution wasn't a divorce. Judicial separation, as it is now known, allows the partners to live apart without severing their marriage's bonds, with the possibility of getting back together and moving back in together down the road if circumstances change.

What is Judicial Separation?

A judicial separation is a de facto divorce that has no effect on the validity of the marriage. As per Section 23 of Special Marriage Act, 1954, either the husband or the wife may file a petition with the District Court if the couple do not want to remain in such a marital affair. Depending on whether the petition is legitimate, the court will decide how to rule and what to do.

Grounds for Judicial Separation under Special Marriage Act

The Special Marriage Act of 1954's judicial separation grounds are the same as those under the Hindu Marriage Act of 1955, and they are as follows −

A petition for judicial separation may be filed by either spouse in a marriage for any of the reasons listed above −

  • The other party engaged in voluntary sexual activity with anyone other than their spouse after the marriage was solemnized; or

  • When the marriage was solemnized, the other party treated the petitioner cruelly;

  • Before the petition was presented, the other party abandoned the petitioner for a continuous period of at least two years;

  • The other party has suffered from a mental condition of such a sort and severity that the petitioner cannot fairly be expected to cohabitate with the respondent or has been incurably insane.

  • The other party has been afflicted with a severe form of leprosy that cannot be cured.

  • The other person has had an infectious form of venereal illness; or

  • The other party joined a holy order and renounced the world.

  • Individuals who would have naturally learned about the other party had it been living have not heard that it has been alive for at least seven years;

There are also the additional grounds listed below for a wife to request a judicial separation −

  • When the marriage between her and her husband was solemnized, the husband had already been married to another woman, or the husband's wife was still alive. Regardless of the situation, the other wife had to be present when the petition was presented.

  • The husband has committed rape, sodomy, or brutality since the marriage was solemnized;

  • A decree or order, as the case may be, has been issued against the husband awarding maintenance to the wife despite the fact that she was living apart and that cohabitation has since resumed since the passing of such a decree or order under Section 18 of the Hindu Adoptions and Maintenance Act (78 of 1956) or under corresponding Section 488 of the Code of Criminal Procedure (5 of 1898).

  • Her marriage, whether it was consummated or not, was solemnized before she turned 15 years old, and she repudiated the union after she turned that age.


The caste system is not a new idea in Indian culture. Many empires have historically fallen because of the caste structure that was in place. It was impossible to pinpoint where it started, but it might be nearing its end. If an appropriate revision of the Special Marriage Act, 1954, were passed, people would be free to marry the person of their choice regardless of caste, community, religion, or cultural taboos. The purpose of the special marriage is to protect the couple as much as is practical from the anger of the community.

Frequently Asked Questions

Q1. Which is better a divorce or judicial separation?

Ans. The primary legal distinction between divorce and judicial separation is that the former permits both parties to remarry, while the latter does not. In any application for a decree of divorce, the court may also consider the provisions agreed to in a decree of judicial separation.

Q2. Does judicial separation end a marriage?

Ans. A legal separation, commonly referred to as a "judicial separation," is a process to end a marriage without having a divorce or dissolution. It enables you and your spouse to formally decide on issues like your finances and living situation while maintaining your marital or civil partnership status.

Q3. What is legal notice for judicial separation?

Ans. A legal notice for judicial separation is a formal written communication sent by one spouse to the other, expressing the intention to get separated judicially. On the other hand, judicial separation is a legal process that allows married couples to live separately while still legally married.

Q4. What is a Decree of Judicial Separation?

Ans. A Decree of Judicial Separation is a court order issued by a judge that specifies the conditions under which you and your spouse will no longer cohabitate. A judicial separation prevents you from getting married again.

Q5. What is the limitation for judicial separation?

Ans. Under all personal laws, the judicial separation period is for one year. The period of judicial separation gives time for resolving the matrimonial disputes and misunderstanding between the couple.

Updated on: 06-Apr-2023


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