The mandatory one-year separation under Section 13B of the Hindu Marriage Act cannot be waived, ensuring compliance with statutory obligations in mutual divorce cases.

JUDGMENT

This Appeal under section 28 of the Hindu Marriage Act , 1955 has been filed against the judgment and decree dated 23.07.2021 passed by First Additional District Judge, Itarsi, District Hoshangabad whereby the joint application filed by appellant-Vishal Kushwaha and her wife Ragini under Section 13 (B) of the for mutual divorce has been rejected and the divorce petition has been dismissed on the ground that application has been filed before prerequisite period of one year under Section 14 of the .

2. A perusal of the application filed under Section 13 B of the Hindu Marriage Act , 1955 (hereinafter referred to as “the Act”) shows that the marriage was solemnized on 21.02.2019 between the parties but after some time of marriage their marital relations got soured as a result whereof they started to live separately. On 15.10.2019 almost after 7 months and 24 days of marriage, they filed an application seeking mutual divorce under (B) of the Act before the Court of District Judge, Itarsi. Both the parties are living separately since 7 months prior to filing of the application under B of the Act. The said application under B of the Act was registered as RCS No.118/19. The divorce application filed under B of the Act was rejected by the learned District Judge by judgment dated 23.07.2021 as pre-mature stating that under Section 14 of the Act, no application for divorce can be presented before expiry of the period of one year of marriage. Aggrieved with the said judgment, appellant husband has preferred the present appeal.

3. It is relevant to mention here that no application under Section 14 of the Act or an application to grant leave to present the divorce application with mutual consent before the expiration of the period of one year since the date of marriage, was filed.

4. Shri Deepak Panjwani, learned counsel for the appellant, has placed reliance on the judgment of Priyanka Maity (Ghosh) vs. Shri Sabyasachi Maity, 2012 AIR (Cal) 243 and argued that under Section 14 of the Act a petition for mutual divorce could be entertained even before the expiry of one year from the date of marriage. It is not mandatory to require compliance with mathematical precision and to warrant rejection for non filing of application under of the Act as provision of (1) of the Act is not mandatory. The provisions are directory in nature. As petition itself was pending before the Court for more than a year and that is substantial compliance of (1) of the Act, learned trial Court has committed an error in dismissing the mutual divorce application on the ground that the period of one year provided under of the Act has not expired. He further submitted that the period of one year since the date of presentation of the application by the parties to the marriage can be waived by the Court itself under the proviso to of the Act for the purpose of filing of petition under Section 13B of the Act when it appears that there are no chances of living together as husband and wife and their differences cannot be resolved. He further submitted that both the parties are living separately for more than a year; therefore, it would be in the interest of justice, if the impugned judgment dated 23.07.2021 passed by learned District Judge is set aside and decree on the basis of mutual divorce under Section 13B of the Act is granted

5. On the other hand, learned counsel for the respondent wife Shri Abhay Gupta has opposed the arguments advanced by learned counsel for the appellant and has submitted that respondent wife does not want mutual divorce on the basis of consent. The learned District Judge has ri