SWATANTER KUMAR, C.J .:- Simple but a pertinent question of law challenging the constitutional validity of provisions of Section 13-B of Hindu Marriage Act, 1955 (hereinafter referred to as the 'Act') insofar as it relates to the pre-requisite period of separation for one year for institution of petition under section 13B of the Act, as mandatory and also on the ground that it is arbitrary and has no nexus to the object of the said provision, arise~ in this petition.

2. The petitioner No.1 was married to the petitioner No.2 on 29th April, 2007, according to Hindu rites and customs. The marriage between the parties was registered in accordance with law. After marriage, the parties cohabited at Bombay till 2nd August, 2007 when matrimonial differences arose between the parties. According to them, the parties realized that they were not suitable to each other, their marriage had irretrievably broken down and there was no possibility of saving the marriage. There are no issues from the wedlock. Since 2nd August, 2007, the parties are living separately. Attempts for re-conciliation and resettlement of the matrimonial home failed. Resultantly, with an intention to avoid any legal complications and to ensure that they do not litigate any further and to put an end to the matrimonial relationship by mutual consent without making any allegations against each other, the parties applied for dissolution of marriage by a decree of divorce by mutual consent under the provisions of section 13-B of the "Act". This petition for divorce by mutual consent was filed on 30th October, 2007.

3. When the matter came up before the learned Principal Judge of the Family Court, vide order dated 30th October, 2007, the petition was rejected. The petitioners, rather than assailing the said order in appeal, filed the present writ petition on the ground that the reasons recorded by the learned Principal Judge Family Court, for rejecting the petition were unconstitutional. The order dated 30th October, 2007 reads as under:

"On insistence of Shri. Nitish Bhutekar, Advocate, following order is passed.

The petition is filed under Sec.13-B of the Hindu Marriage Act, 1955, although the marriage took place on 29th April, 2007 i.e. only six months back. Sec.13-B does not allow the parties to come to the court for divorce by mutual consent unless they complete one year or more separation. In this case, despite this clear provision the petition is not only filed but this order is insisted upon.

ORDER

The petition stands rejected."

4. According to the petitioners, 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 13-B of the Act is unconstitutional, arbitrary and tantamount to an artificial classification which is impermissible and such a pre-condition is contrary to the object of insertion of section 13-B of the Act. It has also been the plea, raised on behalf of the petitioners, that there is no nexus between the object sought to be achieved and the pre-condition of one year living separately as contemplated under section 13-B. This condition is unreasonable and is not in consonance with the changing values of the society.

5. In the case of Dr. Dwaraka Bal Vs. Professor Nainan Mathews, AIR 1953 Madras 792 the court observed that the law in India in its anxiety to protect the sacred institution of marriage, has not allowed mere incompatibility of temperament to be a ground for divorce. Till the law is amended courts must enforce the law and cannot make judge-made law by stretching law beyond its legitimate limits. The Court also said that a Judge is not the person to decide the interests of the society. When the law says a thing clearly, it must be carried out. Thus a Court cannot take into consideration that if divorce is not granted a healthy and sturdy woman will go without a mate and that it would be in the interest of society to grant her divorce and allow her to marry