Judicial separation: living apart without a divorce

What it is

Judicial separation is a decree of the court that allows a husband and wife to live apart while their marriage continues. It sits between staying together and divorce.

Once the decree is passed, it is no longer obligatory for the petitioner to live with the respondent (Hindu Marriage Act, Section 10(2)). The spouse who files is the petitioner; the other spouse is the respondent. Because the marriage has not ended, neither of you can marry anyone else.

When it applies

Judicial separation fits when living together has become impossible, but you do not want, or are not ready for, a divorce. You must prove a ground — a reason the law accepts. The grounds come from the law your marriage falls under:

• Hindus, Buddhists, Jains and Sikhs — Section 10 of the Hindu Marriage Act, 1955. You can rely on any ground for divorce in Section 13(1): adultery, cruelty, desertion for a continuous period of at least two years, conversion to another religion, serious mental disorder, venereal disease in a communicable form, renouncing the world, or not being heard of as alive for seven years. A wife can also rely on the further grounds for her in Section 13(2).
• Marriages under the Special Marriage Act, 1954 — Section 23, on the grounds for divorce in that Act, or because the respondent has not complied with a decree for restitution of conjugal rights.
• Christians — Sections 22 and 23 of the Divorce Act, 1869: adultery, cruelty, or desertion for two years or more.
• Parsis — Section 34 of the Parsi Marriage and Divorce Act, 1936, on any ground on which a suit for divorce could be filed.

Cruelty is not defined in the Hindu Marriage Act; courts decide it on the facts, and it can be mental as well as physical. Desertion means one spouse leaving the other without reasonable cause and against their wish, and includes wilful neglect (Section 13).

If you are facing violence at home, you do not need a separation decree to be protected. A Magistrate can order protection and your right to stay in the home under the Domestic Violence Act. See Facing violence at home.

What happens after the decree

• You need not live together. Your spouse cannot insist that you return.
• You are still married. Neither of you can remarry. Rights that depend on being married, such as maintenance, continue to be governed by the law.
• It can be reversed. If you reconcile, either of you can ask the court to rescind the decree, and it can if it finds that just and reasonable (Section 10(2)).
• It can lead to divorce. If there is no resumption of cohabitation — you do not start living together again — for one year or more after the decree, either spouse can ask for a divorce on that ground (Hindu Marriage Act, Section 13(1A)(i); Special Marriage Act, Section 27(2)).

The steps and the timeline

1. Choose the court. The petition goes to the Family Court, which handles judicial separation where one has been set up (Family Courts Act, Section 7), otherwise to the district court. Under Section 19 of the Hindu Marriage Act you can file where the marriage took place, where your spouse lives, where you last lived together, or, if you are the wife, where you live now.

2. The petition. Your advocate drafts a petition naming the ground and setting out the facts that prove it, with dates. It also asks for anything else you need — maintenance, custody, return of belongings. You sign and verify it, and it is filed with the court fee, which is set by your state.

3. Notice and reply. The court sends notice to your spouse, who files a written statement answering your petition.

4. Reconciliation and counselling. Before granting relief, the court must first try to bring about a reconciliation where that is possible (Hindu Marriage Act, Section 23), and a Family Court must try to help the parties settle (Family Courts Act, Section 9). If you reconcile, the case ends.

5. Interim applications. While the case runs, a spouse without enough income can ask for monthly support and the costs of the case (Section 24), and the court can make interim orders on the custody, maintenance and education of children (Section 26). See Maintenance.

6. Evidence. You give evidence and are cross-examined, meaning questioned by your spouse's advocate. Then your spouse does the same. Proceedings in a Family Court may be held in private, and must be if either side asks (Family Courts Act, Section 11).

7. Decree. The court grants or refuses judicial separation. At the time of the decree, or later, it can order permanent alimony — a lump sum or regular payments — for a spouse's support (Hindu Marriage Act, Section 25).

8. Appeal. An appeal from a Family Court goes to the High Court within thirty days (Family Courts Act, Section 19). Where a district court decided it, the Hindu Marriage Act allows ninety days (Section 28).

How long. Section 21B of the Hindu Marriage Act asks courts to try to finish the trial within six months of notice reaching the respondent. That is a target; many cases take longer.

A divorce petition can end in separation. Under Section 13A of the Hindu Marriage Act, if you ask for a divorce, the court can grant judicial separation instead where it thinks that just, except for some grounds. The Special Marriage Act has a similar rule (Section 27A).

Documents needed

• Proof of marriage: the marriage certificate, or wedding photographs and an invitation card.
• Proof of identity and current address for you, and your spouse's address.
• A written timeline of the marriage and of the events behind your ground, with dates.
• Evidence for the ground: messages, emails, letters, medical records, police complaints, photographs, and names of people who saw what happened.
• For desertion: proof of when your spouse left and that you did not agree to it.
• Your income, assets and expenses, and what you know of your spouse's.
• Children's names, dates of birth and school details.
• Copies of any other case between you.

Typical cost

The cost depends on your city and court, the ground, the number of hearings and witnesses, and whether interim applications or appeals follow. The court fee is set by your state. The advocate who takes your case quotes their own fee before you pay anything; eMunshi does not set it.

What the advocate does

• Tells you whether your facts make out a ground, and which law applies.
• Explains how separation and divorce would each affect you, your children and your money.
• Chooses the court and drafts the petition and interim applications.
• Prepares your evidence and your witnesses, and appears for you at hearings.
• Applies later to rescind the decree if you reconcile, or for divorce if you do not.

The self-serve document that comes before it

There is no self-serve document for judicial separation; the petition depends on your facts. If you and your spouse agree that the marriage should end, a mutual consent divorce is usually simpler, and the joint petition and affidavits can be prepared at ₹4,999, checked by a panel advocate. To compare routes, see Contested divorce and Restitution of conjugal rights. A 30-minute call with an independent advocate from our panel starts at ₹999; talk to an advocate.