'Living Separately' U/S.13(B) Of Hindu Marriage Act Means Complete Cessation Of Marital Obligations Regardless Of Physical Residence: Patna High Court
The Patna High Court was considering an appeal against the judgment whereby a joint petition under Section 13(B) of the Hindu Marriage Act, 1955, was rejected.
Justice Nani Tagia, Justice Alok Kumar Pandey, Patna High Court
While upholding an order rejecting a divorce petition where the husband had admitted to establishing a conjugal relationship within the one-year statutory period provided under Section 13(B) of the Hindu Marriage Act, the Patna High Court has held that the term "living separately" under this provision means complete cessation of marital obligations regardless of physical residence.
The High Court was considering an appeal filed against the judgment of the Family Court, whereby the petition filed by a couple under Section 13(B) of the Hindu Marriage Act, 1955, was rejected on the ground that the parties had not been living separately for one year.
The Division Bench of Justice Nani Tagia and Justice Alok Kumar Pandey held, “While analyzing the statutory provision as mentioned in Section 13(B) of the Act the 'living separately' for a period of one year should be immediately preceding the presentation of the petition. "Living separately" means not living as husband and wife, regardless of physical residence. Parties may live under the same roof yet be separated in law, or live in different places yet continue a marital relationship. The essential requirement is a complete cessation of marital obligations, coupled with an intention not to resume cohabitation, for a continuous period of one year immediately preceding the petition.”
Advocate Sanjay Kumar represented the Appellant, while Advocate Sunil Kumar Pandey represented the Respondent.
Factual Background
The appellant and respondent were married as per Hindu rituals and customs on April 28, 2021. The marriage was consummated, and out of their wedlock, one girl child was born. The appellant was selected as a government teacher, and she was posted in a primary school. After the solemnization of marriage, cordial relations between the parties no longer existed, on account of which doubt was created in the minds of both parties. Since both parties had been residing separately since March, 2022 and neither was willing to fulfil the matrimonial obligations, the appellant and respondent decided to part ways. Accordingly, both parties filed a joint petition under Section 13 (B) of the Act for dissolution of marriage based on mutual consent.
As per the terms and conditions of the agreement between the parties, the respondent husband agreed to pay Rs 20 lakh as permanent alimony to the appellant wife, along with Rs 2 lakh as maintenance cost to the daughter. The petition under Section 13(B) was rejected on the ground that the parties had not been living separately for one year, as the respondent/husband had established conjugal relations on March 15, 2023, whereas the joint divorce petition with mutual consent was filed on May 11, 2023 though the respondent had sworn affidavit to the extent that he was living separately for more than one year.
Reasoning
The Bench, at the outset, explained that both parties had filed the joint divorce petition with mutual consent under Section 13 (B) and the Court has to satisfy that the averment made by both parties must be in accordance with the spirit of Section 13(B). The Bench further mentioned that for the purpose of satisfaction, the Court has to inquire whether both the parties, since the date of presentation of the petition, have been living separately for a period of one year or more.
On a perusal of the facts of the case, the Bench noted that the husband had admitted that he had fulfilled the marital obligation on March 15, 2023. The Bench was satisfied based on the inquiry that the averment made in the petition filed under Section 13(B) of the Act was quite divergent from the statement of the husband.
The Bench thus stated, “The statutory provision, as envisaged in Section 13(B) of the Act, has not been fulfilled. In this way, the reason quoted by the concerned court is justified and legal and the court is satisfied at the time of inquiry that Section 13(B) of the Act is totally inconsistent with the statement given by the husband-AW-1 and there is no reason to interfere with the judgment passed by the concerned court.”
However, considering that a compromise petition was already filed, the Bench directed both parties to appear before the Principal Judge, Family Court, Sheohar by filing a petition under Section 13(B) of the Act afresh within 4 weeks.
Cause Title: A v. B (Case No.: Miscellaneous Appeal No.807 of 2024)