The statutory period of one year for separation under Section 13B(1) of the Hindu Marriage Act is mandatory and cannot be waived off under Section 14 of the Act.

Kailash Gambhir, J.

By this appeal filed under Section 28 of the Hindu Marriage Act, 1955, the appellants seek to challenge the impugned order dated 11.11.2010, passed by the Family Court, whereby the application filed by the appellants under Section 14 of the Hindu Marriage Act to seek waiver of one year period for presenting the joint divorce petition under Section 13(B) of the Hindu Marriage Act was dismissed.

2. The grounds taken by both the appellants in the said application are that the appellant No. 1 is working with the Bikanervala Food Pvt. Ltd as an Assistant Unit Manager in Delhi, while appellant No. 2 is working with Qatar Airways, Doha, United Arab Emirates (UAE) as a Flight Attendant and both the parties could not live together for a day after solemnization of their marriage on 12.4.2010. It was also stated by them that their marriage was not consummated and both the parties realised that they are totally incompatible, having different mind sets, ambitions and career orientations. It was also stated that the appellant No. 2 since is working with an Airlines in Doha, therefore, it is not possible for her to join her husband appellant No. 1.

3. The learned Family Court after placing reliance on the judgment of the Apex Court in Anil Kumar Jain v. Maya Jain, II (2009) DMC 449 (SC) : III (2009) CLT 317 (SC) : VIII (2009) SLT 204 : (2009) 10 SCC 415, dismissed the said application moved by the appellants. The learned Family Court held that requirement of Section 13 B(1) of the Hindu Marriage Act is that before presentation of the divorce petition, the parties are required to live separately for a period of one year or more. The court further held that considering the fact that the marriage between the parties was solemnized on 12.4.2010, the statutory period of one year did not come to an end on the day of the presentation of the said petition, therefore, the parties were held not entitled for the grant of exemption of statutory requirement as envisaged under Section 13B(1) of the Hindu Marriage Act. Feeling aggrieved with the said order, both the parties have preferred the present appeal.

4. Ms. Pasrija, learned counsel for the appellants placed reliance on the judgment of this court in Pooja Gupta & Anr. v. Nil, 118 (2005) DLT 492, and unreported judgment in Sh. Tarun Kumar Vaish v. Ms. Meenakshi Vaish, 119 (2005) DLT 567 decided by this court on 13.4.2005. Both the judgments are given by the Hon'ble Mr. Justice Mukul Mudgal, as he then was.

5. Taking into consideration the Statement of Objects and Reasons behind the 1996 amendment in the proviso to Section 14 of the Hindu Marriage Act, the Hon'ble Judge in Pooja Gupta's case (Supra) felt that the legislative intent behind the said amendment was expeditious disposal of divorce cases by way of mutual consent. Relevant para of the said judgment is reproduced as under:

"8. The above statement of objects and reasons though made in the context of parity with Section 28 of Special Marriage Act also clearly indicates that the legislative intent was expeditious disposal of divorces by mutual consent. In my view as long as the Court is satisfied as an essential reason for exemption for filing a divorce by mutual consent prior to expiry of one year after the marriage that the plea for mutual consent is not under coercion/intimidation or undue influence and there are no chances of reconciliation and the parties have fully understood the impact and effect of the divorce by mutual consent, the continuance of such a marriage is bound to cause undue hardship to the spouses. The other relevant considerations which may be considered for granting the exemption from passage of one year before filing a petition for divorce by mutual consent are:

(a) the maturity and the comprehension of the spouses;

(b) absence of coercion/intimidation/undue influence;

(c) the duration of the marriage sought to be dissolved;

(d) absence of any possibility of reconciliation;

(e) lack of frivolity;

(f) lac