Good evening experts,

Can both husband & wife jointly file petition for  judicial seperation.Both of them staying togather under one roof and plans to stay to gather even after taking decree for judicial seperation. Maintainenace  clause be mentioned in the petition or not

Thanx

Anuradha Gupta

If they want to live together they should file Restitution of Conjugal rights.  If they want to file judicial separation while still having good understanding as husband and wife, to achieve some purpose, then they can be punished for perjury.

dear, query not understood. judicial separation and living together in the same house - kinldy clarify the ulterior motive of obtainingthe decree

Yes they are living under same roof but separately in their own rooms they dont have any relationship of husband wife between them. Wife wants a  shelter and husband has agreed to provide  a room in his house.but they want decree of judicial separation to be passed.

Very tricky question indeed. If they want judicial separation decree from the court, there is no mutual consent judicial separation clause in the Act.  So, the judicial separation can be granted for the grounds available in the Act, which are same as that of divorce.  If one of them alleges cruelty, adultery, desertion for more than 2 years (yes, indeed desertion-that is possible living under the same roof) etc. and the other does not contest, then there is possibility of such a judicial separation decree.  Coming to the question of maintenance, the wife can file maintenance application under Section 25 and if the husband does not oppose, then that maintenance order also can be obtained.  By obtaining judicial separation, both will not have marital obligations towards each other, but they are barred to remarry.

Sec.17 DV Act : Right to reside in a shared household.

(1) Notwithstanding anything contained in any other law for the time being in force, every woman in a domestic relationship shall have the right to reside in the shared household, whether or not she has any right, title or beneficial interest in the same.

(2) The aggrieved person shall not be evicted or excluded from the shared household or any part of it by the respondent save in accordance with the procedure established by law.

when law itself provides for such facility for women, there is no need to file a petition for Judicial separation for it.  That right is not ceded to women by any court, it is directly ceded by law to woman as a matter of right.

Right ceded by Law need not again be pleaded to be declared as right by court through a petition.  If such right is violated then, there would be remedy in the form of petition like in DV Act there is provision to seek Residence Orders under Section 19 if the Right given under 17 is violated by the family members of the victim. Judicial separation is prayed for after making allegations on the grounds mentioned in Sec. 13 (1) or (2) of HMA to give last chance for reconciliation despite such misunderstanding and conflict between parties to the marriage. Hence it is not a means to an end. If there is such an understanding between parties that they are prepared to arrive at an understanding themselves regarding sharing the household premises, then judicial intervention is not necessary to give directions to a couple which already have good understanding among themselves regarding their obligations towards each other, though differences persist.  Tendency to mutually agree for judicial separation is different from the tendeny to mutually agree for divorce.  When a couple shows tendency to mutually agree for judicial separation, that means it has an understanding that reconciliation must be given a last chance.  Under such circumstances there is no need for judiciary to intervene.