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2013 Supreme(Del) 1646
IN THE HIGH COURT OF DELHI AT NEW DELHI
MANMOHAN SINGH, J.
GAURAV KAPOOR - Petitioner No.1
And
KOMAL BABBAR - Petitioner No.2
CM(M) 1347/2013
Decided on: December 13, 2013
Advocate Appeared
Mr.Pulkit Gupta, Adv. with Mr.Amit Bhagat, Adv.
The main legal point established in the judgment is the interpretation of 'living separately' in the context of dissolution of marriage by mutual consent under Section 13-B(1) of the Hindu Marriage Act, 1956, emphasizing that it connotes not living like husband and wife, irrespective of the place of living.
Headnote:
HINDU MARRIAGE ACT - DISSOLUTION OF MARRIAGE - SECTION 13-B(1) - [13-B(1)] - The court discussed the interpretation of 'living separately' and its application in the context of dissolution of marriage by mutual consent under Section 13-B(1) of the Hindu Marriage Act, 1956. The court referred to the case of Smt.Sureshta Devi vs. Om Prakash, (1991) 2 SCC 25 to emphasize that 'living separately' connotes not living like husband and wife, irrespective of the place of living. The court concluded that the specific statement made by the petitioners about stopping living together as husband and wife since August 2012 was crucial, and the physical separation in June 2013 did not alter the fact that the one-year separation period had been met. The court quashed the impugned order and directed the parties to appear before the trial court for consideration of their prayer for recording the First Motion for dissolution of marriage by mutual consent.
Fact of the Case:
The petitioners sought dissolution of their marriage by mutual consent under Section 13-B(1) of the Hindu Marriage Act, 1956. The trial court had dismissed their review application, citing that the statutory period of one year of separation had not expired at the time of filing the petition.
Finding of the Court:
The court found that the specific statement made by the petitioners about stopping living together as husband and wife since August 2012 was crucial, and the physical separation in June 2013 did not alter the fact that the one-year separation period had been met. The court quashed the impugned order and directed the parties to appear before the trial court for consideration of their prayer for recording the First Motion for dissolution of marriage by mutual consent.
Issues: The main issue was whether the petitioners had met the statutory requirement of living separately for a period of one year under Section 13-B(1) of the Hindu Marriage Act, 1956.
Ratio Decidendi: The court emphasized that 'living separately' connotes not living like husband and wife, irrespective of the place of living. The specific statement made by the petitioners about stopping living together as husband and wife since August 2012 was crucial in meeting the statutory requirement.
Final Decision: The court quashed the impugned order and directed the parties to appear before the trial court for consideration of their prayer for recording the First Motion for dissolution of marriage by mutual consent under Section 13-B(1) of the Hindu Marriage Act, 1956.
MANMOHAN SINGH, J.
CM No.19991/2013
Exemption allowed, subject to all just exceptions.
The application is disposed of.
CM(M) 1347/2013
1. The petitioners Gaurav Kapoor and Ms.Komal Babbar have filed the present petition under Article 227 of the Constitution of India, inter alia, seeking quashing/setting aside the order dated 25th November, 2013 passed by the learned Additional District Judge, Tis Hazari Courts, Delhi, in HMA No.652/2013.
2. The brief facts of the matter are that the marriage of the petitioner No.1 and petitioner No.2 was solemnized on 20th June, 2010. In August, 2012 due to temperamental differences and incompatibility, they stopped living together as husband and wife. In June 2013, the petitioner No.2 returned to her parents house in New Delhi. In September 2013, the petitioners filed a joint petition for dissolution of marriage by a decree of divorce by mutual consent under Section 13-B(1) of the Hindu Marriage Act, 1956 before the learned District Judge, Tis Hazari Courts.
3. On 30th September, 2013, the said petition came up before the learned trial court who observed that as the parties were living separately since June, 2013, therefore, the statutory period of one year of separation has not expired on the date of filing of the petition and would elapse only in June 2014. Therefore, the petition filed by both the petitioners, being HMA 652/2013, was adjourned to 1st July, 2014.
4. Thereafter, the petitioners filed an application under Section 114 read with Order XLVII CPC for review of order dated 30th September, 2013. However, by impugned order dated 25th November, 2013, the learned trial court dismissed the review application. The following are reasons given by the learned trial court while dismissing the review application:
“After hearing arguments and on the perusal of the material on the record reveals that in para IV of the petition, it is mentioned that “it is pertinent to mention herein that the parties to the present petition had stopped living together as husband and wife since the beginning of the month of August, 2012 and it was merely the physical separation which took place in the month of June, 2013”
The averments that the parties to the petition had stopped living together as husband and wife, since beginning of month of August, 2012 is a very vague term as the petition is silent about how the parties to the petition had stopped living together as husband and wife, on what address they were residing at that time or whether they were residing with other family members or whether they were residing in one room under same roof.
The party to the petition has even categorically also mention that it was merely the physical separation which took place in the month of June, 2013. Section 13-B of HMA categorically ruled that “the petition for dissolution of marriage or 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; 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.” Meaning-thereby the Act has categorically ruled that the parties must be living separately for the period of one year or more but in the present petition there is an averment that the parties to the present petition has stopped living as husband and wife since the beginning of the month of August, 2012 and it was merely the physical separation which took place in the month of June, 2013. Hence, one year of separation will complete on June, 2014 and this petition is to be considered on 01.07.2014 only.”
5. I have heard the learned counsel for the petitioners and have also gone through the petition for dissolution of marriage. In para 4 of the petition, it is specifically mentioned that both had stopped living together as hus
