( 1 ) IN this appeal under Sec. 28 of the Hindu Marriage Act, 1955 (act for short), the appellant/original petitioner No. 1-husband, has questioned the legality and validity of dismissal of the petition for divorce by mutual consent, under Sec. 13b (1) of the Act by the learned City Civil court Judge, on 22-4-1992. in Hindu Marriage Petition No. 34 of 1992. In view of the peculiar circumstances of the case, this matter was fixed urgently for final hearing.

( 2 ) A few material facts leading to the rise of the present appeal, may be, shortly, stated at the outset.

( 3 ) THE appellant is the original petitioner No. 1-husband and the respondent, herein, is the original petitioner No. 2-wife, who preferred a joint petition under Sec. 13b (1) of the Act for divorce by mutual consent, contending that (a) they have been living separately for a period of more than one year and (b) they have not been able to live together, and (c) they have mutually agreed that marriage should be dissolved.

( 4 ) THE marriage between the parties took place, on 28-5-1973, at village bakrol, Taluka Anand, District Kheda, in accordance with Hindu Rites. Out of the said wedlock, the parties have three children, namely, one daughter and two sons. It was a common contention in the original petition that on account of broken marriage, the spouses have been residing separately and their relation, as husband and wife, has not been consu-mated since December 1986. Despite several efforts for reconciliation by the friends, relations and well-wishers, there was no improvement in the strained relationship and, therefore, the spouses mutually agreed that the marriage should be dissolved.

( 5 ) ON appreciation of the facts and the circumstances, the learned trial court Judge reached to the conclusion that one of the conditions that the spouses have been living separately for a period of one year or more was not satisfied as the spouses stayed together, at London, under same roof at the house of the father of the original petitioner No. 2-the wife, for about six months after 4-1-1991 and, therefore, he was pleased to dismiss the petition. Being aggrieved by the said judgment and decree, the original petitioner No. 1-husband has assailed it in this Civil Appeal.

( 6 ) THE question which emerges for consideration, at this juncture i. , as to whether the expression have been living separately in Sec. 13b (1) of the Act is, properly, examined and appreciated by the trial Court. It appears from the facts and circumstances that the view adopted by the trial Court is not only erroneous but is perverse and illegal. The spouses, admittedly, went to London and stayed there for about six months for the purpose of attending the post-death ceremonies of the unfortunate demise of the father of the original petitioner No. 2-wife. The original petition was filed on 4-1-1992. The parties went to London for the aforesaid purpose after 4- 1-1991. Babubhai Somabhai Patel, father of the petitioner No. 2-wife, had expired, at London, on 31-12-1990. The appellant herein-original petitioner No. 1-husband, returned to India, on 28-6-1991. It is the consistent case of both the spouses that there was a broken marriage and there was no consumation of matrimonial relationship after December 1986. Mere stay under one roof, at London, on account of the aforesaid, unfortunate, circumstance, without having consumated the matrimonial relationship, could be said to be a ground for denial of divorce by mutual consent, holding that they have not been living separately for a period of one year from the date of filing of the petition under Sec. 13b (1) of the Act ? The obvious answer would be in the negative. Divorce by mutual consent is provided in Sec. 13b (1) of the Act designedly by the legislature in its wisdom. The requirements of the said provisions are as under : (i) there must be a petition jointly presented to the competent Court by both the spouses, (ii) the ground for dissolution of th