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Report No. 15

44. Judicial separation.-

Under section 14 of the Matrimonial Causes Act, 1950, a petition for judicial separation can be presented on the same grounds on which a petition for divorce can be presented, and on certain other grounds specified therein. That, in general, is the scheme of the Special Marriage Act, 1954, and it is also provided in section 27(1) of the said Act, that when a decree for judicial separation is made, but the parties do not, within two years thereafter, come together, that itself would be a ground for a petition for divorce.

Now it is said that to provide for two remedies on the same facts, one for judicial separation and another for divorce, serves no purpose, and that, further, when a decree for judicial separation is passed, and two years elapse thereafter without the parties coming together, a provision that a fresh action for divorce could again be filed on the same grounds can only result in needless delay and expense.

It has therefore been suggested that an action for judicial separation, might be altogether omitted. There is considerable force in this. But the Roman Catholics do not recognise divorce, and the legal systems based on the Canonical law, generally, provide only for judicial separation. There are considerable sections of the Protestants also who are averse to divorce, and they would prefer a decree for judicial separation to a decree of dissolution of marriage. This is one of the modes of relief recognised in the Indian Divorce Act, 1869, and we do not see sufficient grounds for changing the law.

We have, therefore, provided for relief by way of judicial separation being granted on the same grounds as divorce. But we are impressed by the suggestion that, to permit a second action for divorce after a decree for judicial separation has remained in force for two years, on the identical grounds on which that decree is founded, must result in delay and expense. We have accordingly provided that it is open to either party, to apply, in that very suit, after two years, for a decree of dissolution, if the parties do not come together.

45. It was also suggested by a few witnesses that the grounds for judicial separation might be less stringent than those for divorce. Apart from the vagueness of this suggestion, having regard to the fact that a decree for judicial separation would, in the proposed Act, result, without more, in a decree for dissolution1, the nature and standard of the grounds should be the same for both forms of action. And that in general, is the scheme of the Matrimonial Causes Act, the Special Marriage Act and the Hindu Marriage Act.

1. See para. 44, supra.

Report on the Law of Christian Marriage and Divorce Back

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