The article discusses whether Indian Family Courts can grant judicial separation by mutual consent under the Hindu Marriage Act, 1955 (HMA), despite the Act’s lack of an explicit provision for such consent-based separation. While Indian law recognises mutual consent divorce (e.g., under Section 13B of the HMA), judicial separation under Section 10 HMA traditionally requires fault-based grounds, creating ambiguity on mutual applications. However, the author argues that this silence does not prohibit consent-based separation and that courts should interpret the statute purposively rather than literally

The Family Courts Act, 1984 promotes a welfare-oriented, conciliatory approach, empowering Family Courts to facilitate settlements and adopt flexible procedures that prioritise justice and reconciliation. Given this legislative context, the article asserts that Family Courts can and should recognise mutual judicial separation without creating new law but through harmonious statutory interpretation

 

Judicial separation by mutual consent respects individual autonomy, avoids adversarial litigation, and preserves the marital bond while suspending cohabitation. It offers an intermediate, humane remedy between marriage and divorce, aligning with contemporary social realities and the remedial purpose of matrimonial law in India.

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