Living Separately an Essential requirement for Mutual Divorce in IndiaThe period of one year living separately is sine qua non to the filing of the petition under section 13B and as such, its waiver would be impermissible as per settled corner of interpretation.
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In all the three Acts, it is one of the condition that both the parties
must have been living separately for a period of one year though under the
period is of two years.
Living Separately for a period of one year should be immediately preceding the presentation of the petition. It is necessary that immediately preceding the presentation, the parties must have been living separately. The expression 'living separately' connotes not living like husband and wife. It has no reference to the place of living. The parties may live under the same roof by force of circumstances, and yet they may not be living as husband and wife. The parties may be living in different houses and yet they could live as husband and wife. What seems to be necessary is that they have no desire to perform marital obligations and with that mental attitude, they have been living separately for a period of one year immediately preceding the presentation of the petition.
In Kirtibhai Girdharbhai Patel v. Prafulaben Kiritbhai PateI,
A joint petition filed by both the parties. It was a common contention that on account of broken marriage, the spouses have been residing separately and their relation, as husband and wife, has not been consummated since 1986. However, the trial court dismissed the petition holding that one of the conditions that spouses must have been living separately for one year or more was not satisfied as the spouses stayed together. However, the High Court did not agree and held that this condition have been living separately for a period of one year will be fulfilled even if they have been living under one roof, but the marriage has not been consummated.
Living separately for one year is sine qua non for filing a petition under section 13B of the Act. These words "living separately" for a period of one year came up for interpretation before the Bombay High Court in Miten v. Union of India where the petitioners were married on 29-4-2007 according to Hindu rites
and customs. The marriage between the parties was registered in accordance with law. After the marriage, they cohabited together in Bombay till 2-8-2007, when matrimonial differences arose between them. They were living separately since 2-8-2007. Attempts for reconciliation failed. To put an end to their marriage, they applied for divorce by mutual consent under section 13B of the Act. On 30-10-2007, when the matter came up before the Principal Judge of the Family Court, vide order dated 13-10-2007, the petition was rejected. The petitioners assailed the order of the Family Court by way of writ petition before the Hon'ble High Court.
The ground of rejection by the Family court was that the marriage took place on 29-4-2007 i.e.; only six months back and section 13B, does not allow the parties to come to the Court for divorce by mutual consent unless they complete one year or more separation. The parties contended before the Hon'ble High Court that the pre- condition that they should have lived separately for a period of one year or more for obtaining divorce by mutual consent under section 13B of the Act was unconstitutional, arbitrary and tantamount to an artificial classification which was impermissible and such a pre-condition was contrary to the object of insertion of section 13B of the Act.
The primary contention raised before the Court was that:
the condition No. (i) they have been living separately for a period of one year, and
condition No. (ii) they have not been able to live together were merely directory and can be suitably waived or altered by the Court depending upon the facts and
circumstances of the case and compliance of these conditions was not mandatory.
The Hon'ble High Court while taking note of divergent views of the different High Courts with regard to waiver of six months period as mandatory or directory, held that period of one year "living separately" is sine qua non for filing of petition under section 13B. Its waiver was not permissible as per any settled corner of interpretation.
"the Legislature in its wisdom and being aware of other existing provisions of the Act, other laws and the opinion of the society, opted for insertion of section 13B in its present form without any intent to convert divorce from statutory satisfaction to whim of the parties. The period of one year 'living separately' is sine qua non to the filing of the petition under section 13B and as such, its waiver would be impermissible as per settled corner of interpretation. The Court gets jurisdiction to entertain and decide the petition only after these ingredients are satisfied: Non-compliance of these provisions may even affect the jurisdiction of the Court as the petition would lie beyond the statutorily specified essentials and, thus, in law, be a defective or an incomplete petition.
It also held that while interpreting statutory provisions, Court would not add or subtract words from section nor would it give meaning to language of section other than what is intended on plain reading of provision.
This case shows that period of one year prescribed under section 13B for "living separately" is sine qua non for filing of the petition under section 13B. It cannot be waived by the Court. Not only this, this case also shows that even the period of six months which has been held by some of the Courts as Directory is not so. It is mandatory period and the same also cannot be waived.
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