The grounds under the Hindu Marriage Act 1955 for the purpose of divorce are the same for mutual or judicial separation. So the court using its discretion has the power of not giving straight away the decree of divorce in a proceeding but to pass a decree of judicial separation under section 13(A). In any proceeding under the Hindu Marriage Act for the dissolution of marriage by the way of divorce then the court has the ultimate power to pass the decree of judicial separation instead of divorce.

The object behind the enactment of this section is that the court will try their level best to save the marriage. As we consider it is a sacred institution and; it is the duty of the court to keep the hopes high and to solve the dispute after hearing the parties. In the law related to marriage the main aim of the legislature and the judiciary is to give the best possible relief and not to punish and to liberal interpretation to all the effect. The goal is to prevent and preserve the marriage rather than to allow it to disintegrate.

The ancient practice of Hindu law never promoted the practice of divorce instead they supported marriage as a sacrament and denoted it to remain forever till saat Janam. In the urge of saving the marriage, the act provides the opportunity to both the spouse of one year by way of judicial separation. [divorce lawyer in Gurgaon]

Judgment regarding it:

The apex court in the case of Chetan Das v/s Kamla Devi[1] also observed that matrimonial matters are of delicate human and emotional relationship and interpreting the same judiciary also has the responsibility to treat it with a pinch of delicateness and a more humane approach

But this discretion of court cannot be initiated when the spouse has converted to another religion or renounced the world or there is any kind of presumption as to the death of the spouse. These are the instances where the court has no discretion to grant alternate relief of judicial separation instead of permanent separation


[1] AIR 2001 SC 1709

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