Difference between Judicial

Separation and Divorce

• Judicial Separation does not dissolve the marriage bond but merely suspends
marital rights and obligations during the period of subsistence of the decree.
Parties continues to be husband and wife. In Judicial Separation all
consequences of a valid marriage flows except that the parties are not
obliged to live together. Where as a decree of divorce puts the marriage to an
end. All mutual rights and obligations of spouses ceases. In other words,
after a decree of dissolution of marriage, a marriage tie is broken, party
ceases to be a H&W and are free to go their own ways.
• In JS the parties are at liberty to resume cohabitation at any time without the
intervention of the Court, but to rescind the decree formally, an application
to the court is required under Sec. 10(2).In JS if the parties again cohabit
with each other, normal marital status is required. In Divorce original marital
status cannot be restored.
• During the time when the decree of JS is operational, sexual- intercourse by
the husband without the consent of wife would amount to rape under
section 376-A of the IPC.
• In JS parties are not free to remarry whereas in Divorce parties are free to
remarry after a period of 90 days.
• In the event of non-resumption of cohabitation for a period of one year in
decree of JS parties to such marriage is entitled to get the divorce.
• In the event of one of the spouses dies during the subsistence of the decree
of JS, the other party will succeed to his marriage, i.e. if any parties dies the
other would inherit the property as the marriage still subsists and parties are
H&W.
• After the decree of JS, a party commits a matrimonial offence, she or he may
be disentitled from claiming divorce after the expiry of one year on the
ground of taking advantage of one’s own wrong.
• We can say that the decree of JS is a steeping stone
towards divorce.