Allahabad High Court: Spouses Entering Into Agreement For Divorce During Their Separation Period Doesn't Indicate Togetherness

The Allahabad High Court has held that parties coming to term to file for mutual divorce during their separation period is not an indication of their togetherness.

The Court was considering an Appeal against an order of the Family Court dismissing a Petition for dissolution of marriage under Section 13-B of the Hindu Marriage Act, 1955.

The Division Bench of Justice Arindam Sinha,J. and Justice Avnish Saxena observed, "Requirement under sub-section (1) in section 13-B is for separation of one year or more before the petition is presented. During the period of separation, in event there is agreement to file for divorce by mutual consent, unless there is proof that parties, for the agreement or thereafter stayed together, the meeting of minds to petition for divorce by mutual consent does not militate against them living separately at the time of agreement made during the separation."

The Appellant was represented by Advocate Aman Singh while the Respondent was represented by Advocate Prakash Tripathi.

Facts of the Case

The marriage between the Parties was solemnized on 6th December, 2004 and out of the wedlock, three children were born. Over time, disputes and differences arose between the parties. On January 12, 2022, his client along with her children, went to her parental house and parties thus separated. On 1st August, 2023, on intervention of elders and relatives, the Parties agreed to jointly Petition for Dissolution of the Marriage. Pursuant to the agreement, they petitioned the Family Court. The Petition was filed after more than the prescribed period of one year of separation. Upon filing of the Petition, Parties waited out subsequent prescribed period.

Counsel for Appellant submitted that there was and is no collusion between the Parties in having petitioned the Family Court and the Judge erred in reckoning date of separation from on or after the date of agreement i.e. August 2, 2023, to dismiss the Petition as not maintainable.

Reasoning By Court

The Court at the outset noted that the Parties have lived separately for a period of more than one year prior to their joint petition filed in the Family Court and it was during their time of separation that they mutually agreed to Petition for Divorce by mutual consent. Noting that there are categorical statements of no physical relation since the year 2013 and separate living since January 12, 2022, the Court highlighted the requirement under sub-section (1) in Section 13-B.

It concluded that the Family Court erred on facts in presuming togetherness because parties were, as on August 1, 2023 in agreement that they would file for mutual divorce, as the agreement came after they separated on January, 2022.

"Cause of action is a bundle of facts and averment that lastly the cause of action accrued on 1st August, 2023, as mentioned in the petition, is a fact that constitutes whole of the cause of action. Such averment can in no way be said to be unambiguous or clear admission of parties being together as on that date," the Court observed.

The Appeal was accordingly disposed off.

Case No.- First Appeal Defective No.- 207 of 2025

Appearances:

Appellant- Advocate Aman Singh, Advocate Manoj Pandey

Respondent- Advocate Prakash Tripathi

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