K.T. Sankaran, J.

The appellant and the respondent filed an application under Section 13B of the Hindu Marriage Act before the Family Court, Thiruvalla. The Family Court numbered the case as O.P. (HMA) No.461 of 2004. Six months after the filing of the Original Petition, both parties were present before the Family Court and they wanted a decree of divorce to be passed. 24.6.2005, the Family Court passed the following order.

“Both are present. The 1st petitioner is at present known to be living with another lady and is having two children in that relation. 2nd petitioner does not want to remarry. 1st petitioner is not paying any amount for the maintenance of 2nd petitioner also and that it appears that petition is a collusive one. Hence O.P. dismissed.”

2. The order passed by the Family Court on 24.6.2005 is under challenge in the Matrimonial Appeal.

3. The respondent/wife filed an affidavit dated 1.7.2011 and an application to dispose of the appeal at the earliest. In paragraph 2 and 3 of the affidavit, the respondent stated thus:

“2. The present appeal was filed against the dismissal of a petition for divorce filed under section 13B of the Hindu Marriage Act. The marital life existed between the Appellant and me had been irretrievable broken down even before the time of filing of the Original Petition. Only to purchase peace that we have mutually decided to separate. But owning to the dismissal of the Original Petition we did not get divorce.

3. I am aged 42 years. If I wait for some more years, I may not get any alliance to enter into a second marriage. It is submitted that some good proposals of marriage came in the mean time. But I cannot take any steps without knowing the outcome of the above Appeal. Therefore, an urgent hearing and disposal of the appeal is necessary.”

4. We have perused the application under Section 13B of the Hindu Marriage Act. It is stated that both the parties are living separately since 10.12.1999. Even in the affidavit filed in 2011, the respondent/wife has expressed her desire to dissolve the marriage. The Family Court refused to grant a decree on the ground that the appellant is residing with another woman and he has two children in that relationship and also on the ground that there is collusion between the parties. It is hard to believe that if the husband is living separately with another woman, there would be collusion between the husband and the wife to get a decree on mutual consent.

5. Section 13B of the Hindu Marriage Act was inserted by the Marriage Laws (Amendment) Act, 1976 (Act 68 of 1976). Before the introduction of Section 13B in the Hindu Marriage Act, a joint petition by the husband and wife to dissolve the marriage was unknown. The Parliament thought it fit that a provision must be introduced in the Hindu Marriage Act to enable the parties to approach the Court to get a decree of divorce by mutual consent. The conditions to be satisfied under Section 13B of the Hindu Marriage Act are the following: (1) The petition shall be fixed by both the parties to the marriage together. (2) They must be living separately for a period of one year or more. (3) They have not been able to live together and that they have mutually agreed that the marriage should be dissolved. (4) After filing of the petition, the parties hall move the petition after six months of the presentation of the petition and before eighteen months. (5) The petition is not withdrawn in the meantime. (6) The Court must be satisfied, after making such enquiry as it thinks fit, that the averments in the petition are true.

6. Similar provision as Section 13B of the Hindu Marriage Act was introduced as Section 10A in the Divorce Act and Section 28 in the Special marriage Act.

7. Section 23 of the Hindu Marriage Act provides for a decree in the proceedings. It is provided in clause (bb) of sub-section (1) of Section 23 that the Court must be satisfied that when a divorce is sought on the ground of mutual consen