When a married couple reaches a point in their relationship where it becomes extremely difficult for them to continue in each other’s company, they can seek judicial separation or divorce. Judicial Separation is when the couple is not living together but is still married. The couple is still husband and wife in the eyes of the society. Whereas divorce is when a couple is neither living together nor legally married anymore. In a divorce, any responsibilities or rights arising out of marriage terminate once a decree of divorce is passed.


When the parties cannot live with each other but also do not want to dissolve their marriage, they opt for judicial separation. Judicial separation as a remedy was introduced in India by the British Government. In the common law system, the ecclesiastical courts did not support the concept of divorce. The ecclesiastical courts only granted “divorce a mens et thoro” which means divorce from bed and board. This form of divorce acted as a bar for the estranged couple to re-marry. It has now evolved to become Judicial Separation where the couple can live away from each other and not be legally split. Judicial Separation has been discussed in Section 23 of the Special Marriage Act, 1954 and is explained as follows:

1. Either party can file a petition for Judicial Separation in the district court on the following grounds:

  • Any ground mentioned in Section 27(1) and Section 27(1-A) on which a petition for divorce might have been presented;
  • Where there was a failure to comply with the decree of restitution of conjugal rights.

And if the party seeking relief under Section 23 can convince the court of the truth of his/her statements, then the court may decree judicial separation accordingly.

2. The decree of Judicial Separation will allow the parties to live separately. However, the court is at liberty to cancel the decree of Judicial Separation at any time if either party approaches the court with an application to retract the decree of Judicial Separation. Once the court is satisfied with the truth of his/her statements and considers it reasonable to rescind the decree of Judicial Separation, it may do so.

In Bhagwan v. Amar Kaur, AIR 1962 Punj 144, the Hon’ble Punjab and Haryana High Court held that if, in a petition for divorce, if sufficient ground for divorce cannot be established, a decree of Judicial Separation can be granted on those grounds, then the court is at liberty to decree judicial separation even though it has not been prayed for.


Divorce is an end to a marriage. Once a decree of divorce is granted, every legal obligation and right arising out of a marriage ceases to exist. Divorce also gives parties the freedom to re marry and live happily in their respective lives. Section 27 of the Special Marriage Act, 1954 lays down the grounds on the basis of which the parties can seek divorce.

Grounds for both the parties:

Section 27(1) lays down the grounds on the basis of which either party can seek divorce that are mentioned as follows:

1. Adultery

If either party engages in sexual intercourse with any other person apart from their spouse, it would amount to adultery. Both husband and wife have the right to seek divorce on the ground of adultery. Till 2018, adultery was also a criminal offence under Section 497 of the Indian Penal Code. However, in the case of Joseph Shine v. Union of India WP (Crl.) 194/2017, the Hon’ble Supreme Court decriminalised adultery. Now, adultery is only a ground for divorce.

2. Desertion

If either party has left the company of the other spouse for a continuous period of at least two years, then the aggrieved party can seek divorce on the ground of desertion. The period of two years must immediately precede the institution of the petition of divorce.

In the case of Lachman Utamchand Kiriplani v. Meena Alias Mota AIR 1964 SC 40,it was held that desertion not only constitutes physical separation, but also virtual separation wherein the spouses are staying together but there is a wilful neglect towards the other spouse. Also, if there is no fulfilment of conjugal obligation, it would be regarded as constructive desertion.

3. Imprisonment

If either party to the marriage is undergoing a sentence of not less than 7 years or more for any offence committed by him/her under the Indian Penal Code, 1860, then a decree of divorce may be sought by the aggrieved party.

4. Cruelty

Special Marriage Act, 1954 does not define cruelty. Since the scope of cruelty has not been narrowed by the way of definition, a wider meaning can be attached to it. Cruelty can be mental or physical and can be in any shape or form. If the husband or wife claim that they have been treated with cruelty and prove it in accordance with the law, then it is a valid ground to seek divorce.

In the case of J.L. Nanda v. Veena Nanda 1988 Supp SCC 112, it was held that termination of pregnancy does not amount to cruelty. Hence, it cannot be a valid ground to seek divorce.

5. Unsoundness of mind

If either party to the marriage is suffering from a mental disorder of such nature that it makes it impossible for the other spouse or he/she cannot be reasonably expected to continue living in the company of the mentally disabled spouse, the aggrieved party may seek divorce.

6. Venereal disease

Venereal diseases encompass the diseases that are sexually transmitted. If either party is or has been suffering from any venereal disease, it becomes a valid ground and allows the other party to seek divorce.

In the case of X v. Hospital Z AIR 1999 SC 495, the court was of the opinion that if a spouse is suffering from a venereal disease (HIV in the instant case), it means that he must be contracted the disease before entering the marriage and that he should be injuncted from entering the marriage.

7. Leprosy

Struck down by the Hon’ble Supreme Court of India in Pankaj Sinha vs. Union of India (2018) 2 SCC 1502.

8. Presumption of death

If nobody has heard from the respondent in the last seven years, especially those persons who would have ordinarily heard from him/her had he/she been alive, then the petitioner is entitled to seek divorce. The burden of proof here lies on the petitioner.

According to Section 27(1-A), a wife may approach the district court to seek divorce under the following grounds:

1. Rape, Sodomy or Bestiality

The wife can approach the district court to seek divorce if the husband has been found guilty on the charges of sodomy, rape or bestiality. Bestiality means when a human being engages in sexual intercourse with an animal. Both sodomy and bestiality are an offence under Section 377 of the Indian Penal Code, 1860.

In the case of Bamption v. Bamption, (1959) 2 All ER 766, a wife can seek divorce if a husband commits sodomy on his wife and is found guilty under Section 377, Indian Penal Code, 1860.

In Preeti Kumari vs. Neelkanth Kumar (2018) SCC P&H 757, the Hon’ble High Court of Punjab and Haryana observed that “acts of sodomy, forcible sexual intercourse, and adoption of unnatural means which are forced upon the other spouse resulting in unbearable pain to the extent that one is forced to stay away would certainly be a ground to seek separation or a decree of divorce.”

2. Separation

The wife may seek divorce if a decree has been passed in her favour under Section 18 of the Hindu Adoption and Maintenance Act, 1956; or section 125 of Code of Criminal Procedure, 1973 irrespective of the fact that parties have been living apart and that since the passing of decree, the cohabitation has not resumed for not less than a year.

Section 27(2) lays the grounds for either party to approach the Court to seek divorce. The grounds are mentioned as follows:

1. Judicial Separation

If it has been one year or more since the parties cohabited with each other from when the decree of judicial separation was passed, it becomes a valid ground to seek divorce.

2. Restitution of Conjugal Rights

If it has been one year or more since the parties cohabited with each other from when the decree of restitution of conjugal rights was passed, it becomes a valid ground to seek divorce.

Section 28 of the Special Marriage Act, 1954 describes the conditions to be followed in the case of Divorce by Mutual Consent. The conditions are mentioned below:

  1. Where both the parties have mutually agreed to dissolve their marriage on the ground of unwillingness to live with each other and they already have been living separately for more than a year, they may approach the District Court together with a petition of divorce by mutual consent.
  2. If the said petition is not withdrawn earlier than six months or later than eighteen months from the date of presentation of the said petition, the district court may decree a divorce by mutual consent after hearing both the parties and making any inquiries as it thinks fit.

In the case of Rachna Mittal v. Lt. Kuldeepak Mittal 1995 Supp (3) SCC 414, it was held that the consent to dissolve the marriage given by both the parties must be free from any pressure or ill will.


The remedy of Judicial Separation and Divorce under Special Marriage Act, 1954 serves the purpose of ensuring that the parties who are unable to continue their relationship owing to any of the aforementioned reasons covered by this Act, may seek a relief of Judicial Separation or Divorce as they deem fit. Judicial Separation as a remedy still leaves some hope for the estranged couple to reconcile and join each other’s company, however, the divorce simply puts a full stop to the marriage and sets the couple free from all the marital responsibilities and rights.

Ameesha Goel

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