Oral Judgment: (P.B. Majmudar, J.)

1. Admit.

2. Mr. L.C. Joshi, the learned counsel waives service on behalf of respondent. With the consent of both the sides, this Appeal is taken up for final hearing today.

3. This appeal is directed against the judgment and order passed by Family Court No. 6, Bandra, Mumbai dated 20th November, 2007 in Petition No.F-646 of 2007, by which the learned Judge dismissed the same on the ground that the pre-requisite condition of filing of the petition for divorce by mutual consent is not satisfied, as in view of the agreement executed by the parties regarding mutual divorce, it cannot be said that on the date of filing the application, the relationship of husband and wife was subsisting. The appellant and respondent herein had submitted the said petition for mutual divorce under Section 13(b) of The Hindu Marriage Act, 1955 for dissolution of marriage by mutual consent. The marriage between the appellant and respondent was solemnized on 2nd February, 2006 and however, they realized that it is not possible for them to continue the matrimonial tie any further and they separated from each other, in the second week of June, 2006. Since then, the appellant-wife is residing with her parents. A joint petition thereafter was submitted on 10th May, 2007 under Section 13(b) of the Hindu Marriage Act. Along with the application a document relating to divorce by mutual consent was also annexed. The parties interse agreed by the said agreement that the marriage solemnized between them is hereby dissolved by mutual consent. Clause 6 in the said agreement provides as under:-

6. “Hence, the marriage solemnized between the parties on 2nd February 2006 is hereby dissolved by mutual consent”

.4. The learned Judge of the Family Court rejected the said application on the ground that on the date of presenting the application, the marriage was already dissolved by mutual agreement and therefore it cannot be said that the appellant and the respondent were the husband and wife on the relevant date i.e. on the date of filing of the application and since the relationship between them was not subsisting at the time of filing of the application. In view of the agreement produced on record, the learned Trial judge was of the opinion that the petition filed by the spouses whose marriage already stood dissolved prior to filing of the petition, cannot present such petition as no relationship

.is in existence and on that basis the application was dismissed.

5. At the time of the hearing of this Appeal, it is pointed out by both the advocates that the appellant and respondent both are educated people, as the appellant-wife is an Architect and the respondent-husband is a Chemical Engineer and they have realized that it is not possible for them to stay together and that decree for dissolution of marriage under Section 13(b) of the Hindu Marriage Act is required to be passed. It is submitted that the learned Trial judge has committed an error in dismissing the petition on the ground that the same is not maintainable.

.6. We have gone through the judgment of the learned trial judge and we have also gone through the documents. We have also gone through the original application as well as the document which was annexed with the original application. The principal question which is required to be considered is as to whether a joint petition filed by the appellant and respondent herein before the trial court was maintainable. In this connection, it is required to be noted that simply because an agreement was produced along with the original application showing that the marriage has been dissolved by entering into an agreement in this behalf can never be said to be a ground for coming to the conclusion that the marriage was not subsisting on the date of the filing of the application. The spouses cannot dissolve the marriage on their own by entering into any sort of agreement and such type of agreement cannot be recognized by the