The interpretation of 'living separately' and the necessity of mutual consent for divorce by the parties were the central legal points established in the judgment.

JUDGMENT :

R.G. Avachat, J.

1. This appeal is directed against the judgment and decree dated 25/2/2020, passed by learned Judge, Family Court, Jalgaon in the petition, described as F-145/2019. By the impugned judgment and decree, the petition moved for dissolution of marriage by mutual consent, came to be dismissed. The appellants are, therefore, before this Court.

2. Facts giving rise to the appeal are as follows:-

The appellants are the spouses inter-se. Marriage between them took place on 6/4/2018. On marriage, both the appellants started residing together as husband and wife. Within a few days of marriage, the appellants realised to have not been compatible with each other on many a front. The same gave rise to frequent matrimonial bickering. Both the appellants tried to reconcile the differences, but to no avail. Both of them, therefore, started living separately from each other since 13/1/2019. A crime for offences punishable under Sections 498-A, 323, 504, 506 and 507 of the Indian Penal Code has been registered against the husband (appellant No. 1) at the instance of the wife (appellant No. 2). With the intervention of elders in the family, it was ultimately decided to go for a divorce by mutual consent. The appellants, therefore, filed the petition under Section 13-B of the Hindu Marriage Act (hereinafter referred to as the Act for short).

3. It appears that, the appellants had appeared before the Judge of the Family Court and made a joint motion for grant of a decree of divorce by mutual consent. The learned Judge was, however, pleased to dismiss the petition on the ground that the parties had not been living separately for a period of one year next before the presentation of the petition.

4. Heard Shri Satyajit S. Bora, learned Advocate for the appellants. Perused the petition and the impugned judgment as well.

Section 13-B of the Hindu Marriage Act, 1955 reads:

"13-B. Divorce by mutual consent:-

(1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the district Court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976, on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.

(2) On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the Court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree."

5. It needs to be referred to that, Sections 23(1)(bb) and (c) of the Act mandate, when a decree is sought on the ground of mutual consent, the Court has to satisfy itself that such consent has not been obtained by force, fraud or undue influence and the petition is not presented or prosecuted in collusion of the parties.

6. The marriage of the appellants took place on 6/4/2018. They started residing separately (physically) from each other since 13/1/2019. The petition was filed on 14/8/2019.

7. The Hon'ble Supreme Court of India, in case of Sureshta Devi v. Om Prakash reported in AIR 1992 SC 1904 : (1991 AIR SCW 373)), observed:-

8. The '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 of petition, the parties must have been living separately. The expression 'living separately', connotes to our mind not living like husband and wife. It has no reference to the place o