Case Note & Summary
The appellants, a Hindu couple married on 27.11.2005 under Arya Samaj rites, filed a petition for divorce by mutual consent under Section 13B of the Hindu Marriage Act, 1955 on 11.4.2014 before the Family Court, Bangalore. They had been living under the same roof but leading separate lives for eight years due to differences, had no children, and had no claims against each other. After the mandatory six-month waiting period, they appeared before the court on 13.10.2014, but the Family Court dismissed the petition observing that there was no cause of action. Aggrieved, they appealed to the High Court. The High Court held that the expression 'living separately' under Section 13B does not require physical separation; it means living apart with no marital relationship. The parties had no marital relations for eight years, and the marriage had irretrievably broken down. The Family Court erred in dismissing the petition without ascertaining the facts. The High Court set aside the order and allowed the petition, dissolving the marriage by mutual consent.
Headnote
A) Family Law - Mutual Divorce - Section 13B Hindu Marriage Act, 1955 - Living Under Same Roof - The court held that the expression 'living separately' under Section 13B does not necessarily mean living in different places; it means living apart with no marital relationship. The appellants, though under the same roof, had no marital relations for eight years and had no children or claims against each other. The Family Court erred in dismissing the petition without ascertaining facts. (Paras 2-4) B) Family Law - Mutual Divorce - Section 13B Hindu Marriage Act, 1955 - Irretrievable Breakdown - The court observed that the marriage had irretrievably broken down as the parties had been living separately for over a year and had no possibility of reconciliation. The waiting period of six months had been complied with. (Paras 2-4) C) Family Law - Mutual Divorce - Section 13B Hindu Marriage Act, 1955 - Cause of Action - The Family Court's observation that there was no cause of action was erroneous. The cause of action arose from the mutual consent and the irretrievable breakdown of marriage. (Para 3)
Issue of Consideration
Whether a petition for divorce by mutual consent under Section 13B of the Hindu Marriage Act, 1955 is maintainable when the parties are living under the same roof but leading separate lives for more than a year.
Final Decision
The High Court allowed the appeal, set aside the order of the Family Court dated 13.10.2014, and allowed the petition under Section 13B of the Hindu Marriage Act, 1955, dissolving the marriage between the appellants by mutual consent.
Law Points
- Mutual divorce under Section 13B Hindu Marriage Act
- 1955 does not require physical separation
- living under same roof with no marital relationship for over a year constitutes separation
- irretrievable breakdown of marriage
- Family Court cannot dismiss petition without ascertaining facts
