Advocate Abhi Sheth

In all the three Acts, it is one of the condition that both the parties must have been living separately for a period of one year though under the Christian Divorce Act the period is of two years.

Living Separately for a period of one year should be immediately preceding the presentation of the petition. It is necessary that immediately preceding the presentation, the parties must have been living separately. The expression 'living separately' connotes not living like husband and wife. It has no reference to the place of living. The parties may live under the same roof by force of circumstances, and yet they may not be living as husband and wife. The parties may be living in different houses and yet they could live as husband and wife. What seems to be necessary is that they have no desire to perform marital obligations and with that mental attitude, they have been living separately for a period of one year immediately preceding the presentation of the petition.

In Kirtibhai Girdharbhai Patel v. Prafulaben Kiritbhai PateI,
A joint petition filed by both the parties. It was a common contention that on account of broken marriage, the spouses have been residing separately and their relation, as husband and wife, has not been consummated since 1986. However, the trial court dismissed the petition holding that one of the conditions that spouses must have been living separately for one year or more was not satisfied as the spouses stayed together. However, the High Court did not agree and held that this condition have been living separately for a period of one year will be fulfilled even if they have been living under one roof, but the marriage has not been consummated.

Living separately for one year is sine qua non for filing a petition under section 13B of the Act. These words "living separately" for a period of one year came up for interpretation before the Bombay High Court in Miten v. Union of India where the petitioners were married on 29-4-2007 according to Hindu rites and customs. The marriage between the parties was registered in accordance with law. After the marriage, they cohabited together in Bombay till 2-8-2007, when matrimonial differences arose between them. They were living separately since 2-8-2007. Attempts for reconciliation failed. To put an end to their marriage, they applied for divorce by mutual consent under section 13B of the Act. On 30-10-2007, when the matter came up before the Principal Judge of the Family Court, vide order dated 13-10-2007, the petition was rejected. The petitioners assailed the order of the Family Court by way of writ petition before the Hon'ble High Court.

The ground of rejection by the Family court was that the marriage took place on 29-4-2007 i.e.; only six months back and section 13B, does not allow the parties to come to the Court for divorce by mutual consent unless they complete one year or more separation. The parties contended before the Hon'ble High Court that the pre- condition that they should have lived separately for a period of one year or more for obtaining divorce by mutual consent under section 13B of the Act was unconstitutional, arbitrary and tantamount to an artificial classification which was impermissible and such a pre-condition was contrary to the object of insertion of section 13B of the Act.

The primary contention raised before the Court was that:

the condition No. (i) they have been living separately for a period of one year, and

condition No. (ii) they have not been able to live together were merely directory and can be suitably waived or altered by the Court depending upon the facts and
circumstances of the case and compliance of these conditions was not mandatory.

The Hon'ble High Court while taking note of divergent views of the different High Courts with regard to waiver of six months period as mandatory or directory, held that period of one year "living separately" is sine qua non for filing of petition under section 13B. Its waiver was not permissible as per any settled corner of interpretation.

It observed:

"the Legislature in its wisdom and being aware of other existing provisions of the Act, other laws and the opinion of the society, opted for insertion of section 13B in its present form without any intent to convert divorce from statutory satisfaction to whim of the parties. The period of one year 'living separately' is sine qua non to the filing of the petition under section 13B and as such, its waiver would be impermissible as per settled corner of interpretation. The Court gets jurisdiction to entertain and decide the petition only after these ingredients are satisfied: Non-compliance of these provisions may even affect the jurisdiction of the Court as the petition would lie beyond the statutorily specified essentials and, thus, in law, be a defective or an incomplete petition.

It also held that while interpreting statutory provisions, Court would not add or subtract words from section nor would it give meaning to language of section other than what is intended on plain reading of provision.

This case shows that period of one year prescribed under section 13B for "living separately" is sine qua non for filing of the petition under section 13B. It cannot be waived by the Court. Not only this, this case also shows that even the period of six months which has been held by some of the Courts as Directory is not so. It is mandatory period and the same also cannot be waived.

In Hindu’s marriage is considered to be a Sacrament and not the contract. The husband and wife tie there knot before the sacred fire and take the blessings of elders to live their life together for many lifes to come.  But sometimes there arises a situation where in the husband and wife could not live together even for a single life. Therefore in order to get rid of the sacred relation the parties have to seek the help of the courts in filing the divorce petition. Since the legislature has provided ample of grounds for divorce, but the problem comes when the parties fail to prove even a single allegation as mentioned in the petition.

Section 13 of the Hindu Marriage Act, 1955 provides multiple grounds to seek the divorce, but the parties coming forward with all the genuine allegations fails to prove the same resulting into long lasting litigation, wasting courts time, spending so much money and wasting their life without any fruitful result. Since the acts committed in matrimonial offences are within the four walls they are not easy to be proved resulting in breaking the back bone of the parties.

Seeing the fate of the cases filed under section 13 of the Hindu Marriage Act, 1955, the legislature in the year 1976 have introduced Section13B of the Hindu Marriage Act, Amendment Act which provides for divorce on the ground of mutual consent i.e. the parties mutually agree to take the divorce by filing the common petition and make it easier for both of them. But again the problem started when the parties cannot wait for the minimum prescribed period of 6 to 18 months (which is called as cooling period) between the first and the second motion. Sometimes the parties are so fed up with the relation that they can’t wait for 6-18 months or they don’t need any cooling period and seek the waiving of that particular period.

For presenting the petition under section 13B the following essentials were required to be fulfilled. These are as follows:-

1. The parties must be living separately from one year immediately preceding the presentation of the petition. The expression living separately' connotes not living like husband and wife. It has no reference to the place of living. The parties may live under the same roof and yet they may not be living as husband and wife. The parties should have no desire to perform marital obligations; Sureshta Devi v. Om Prakash, AIR 1992 SC 1904.

2. The period of six to eighteen months time is given in divorce by mutual consent as to give time and opportunity to the parties to reflect on their move and seek advice from relations and friends. Mutual consent should continue till the divorce decree is passed. The court should be satisfied about the bona fides and consent of the parties. If there is no consent at the time of enquiry the court gets no jurisdiction to make a decree for divorce. If the court is held to have the power to make a decree solely based on the initial petition, it negates the whole idea of mutuality. There can be unilateral withdrawal of consent. Held, that since consent of the wife was obtained by fraud and wife was not willing to consent, there could be unilateral withdrawal, of consent; Sureshta Devi v. Om Prakash, AIR 1992 SC 1904.

3. The period of 6 to 18 months provided in section 13B is a period of interregnum which is intended to give time and opportunity to the parties to reflect on their move. In this transitional period the parties or either of them may have second thoughts; Suman v. Surendra Kumar, AIR 2003 Raj 155.

Even after the coming of section 13B of the Hindu Marriage Act, 1976 Amendment Act the courts have started to face the difficulty when the parties are coming with an application to waive of the minimum cooling period and wish to present the second motion just after the first motion statement has been recorded. Then the Hon’ble Supreme Court in Ashok Hurra v Rupa Ashok, held that “in exercise of its extraordinary powers under Article 142 of the Constitution, the Supreme Court can grant relief to the parties without even waiting for the statutory period of six months stipulated in s. 13-B of the Act. This doctrine of irretrievable break-down of marriage is not available even to the High Court which do not have powers similar to those exercised by the Supreme Court under Article 142 of the Constitution.”

Therefore, the courts have been inclined more towards waiving off this period if the circumstance of the case demands so and where there is no chance of reconciliation between the parties. Also, Supreme Court by way of its extraordinary powers as provided under Article 142 of the Indian Constitution can grant divorce without waiting for 6 months if it is satisfied that the marriage is irretrievably broken down. However, this power is restricted only to Supreme Court. There is still uncertainty whether High Courts and Family Courts have to mandatorily wait for a period of 6 months. But as it is evident from many cases where there is no possibility of reconciliation between the parties and the marriage has been broken down irretrievably, the courts should follow the spirit of law more than the formal requirements of the section.