Recently, the Division Bench of the Allahabad High Court held that if, during the period of separation, the parties agree to file for divorce by mutual consent, such an agreement does not negate their status of living separately, unless there is evidence that they cohabited either at the time of the agreement or thereafter.
Brief facts:
The factual matrix of the case is that the marriage between the parties was solemnized on 06.12.2004, and three children were born out of the wedlock. Thereafter, disputes and differences arose between the parties, and since 12.01.2022, the parties are living separately. Later on, the parties agreed to jointly petition for dissolution of the marriage on 01.08.2023. Then, the petition was filed before the family court, and the learned Judge erred in reckoning the date of separation from on or after the date of agreement i.e., 2nd August, 2023, to dismiss the petition as not maintainable. Aggrieved by this, the present appeal is filed.
Observations of the court:
The Hon’ble Court observed that the parties lived separately for a period of more than one year prior to their joint petition being filed in the Family Court. In the time of separation they mutually agreed to petition for divorce by mutual consent, as inferred from averments made in the joint petition and the affidavit of evidence filed by the parties.
It was furthermore observed that the requirement under sub-section (1) in Section 13-B of the Hindu Marriage Act, 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.
Based on these considerations, the court was of the view that the learned court erred in presuming togetherness and the court, after being satisfied upon hearing the parties declare the marriage to dissolve by mutual consent.
The decision of the court:
With the above direction, the court disposed of the appeal.
Case title: Smt. Minakshi Gupta . Kailash Chandra
Case No.: FIRST APPEAL DEFECTIVE No. - 207 of 2025
Coram: Hon'ble Mr. Justice Arindam Sinha, Hon'ble Mr. Justice Avnish Saxena
Advocates for the Appellant: Aman Singh,Manoj Pandey
Advocate for the Respondent: Prakash Tripathi
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