Judicial separation puts the obligation to cohabitation to an end, although it does not affect the marital relationship.
Therefore as soon as the decree of judicial separation is passed the parties to marriage are relieved of the duty to live together and cohabit, but any act of cohabitation between the two would neutralise the effect of decree and their normal marital life is restored. During the operation of the decree, parties to marriage cannot remarry. In case of remarriage such party would be liable for the offence of bigamy.
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Judicial separation is different from divorce. In a decree of divorce the relationship of husband and wife ceases to exist, whereas in judicial separation it merely stands superseded. After divorce the original marital status of the parties cannot be restored. Once the decree of divorce is passed, parties to such marriage become entitled to remarry after the lapse of a statutory period. In the event of non-resumption of cohabitation for a period of one year in a decree of judicial separation, parties to such marriage become entitled to get a decree of divorce. Thus a decree of judicial separation may be said to be a stepping stone to divorce.
Since the grounds of two remedies have become identical, divorce would be more favourably opted by any party to marriage as against judicial separation. In case of a decree of judicial separation, since the remedy of divorce is available to either party after one year has elapsed from the date of decree, the guilty party would not be denied the decree of divorce under Section 23(1) (a) nor can it be assumed that he or she has taken advantage of his or her fault.
The object of judicial separation is to see whether there is any possibility for the spouse to live together again peacefully. So, the decree is in no way an obstacle for cohabitation of the spouse. It is a less drastic remedy than divorce. The grounds of judicial separation are less serious than the grounds for divorce. The following is the distinction between judicial separation and divorce.