Question

Marriage means combined to gether in  the social institution under which two people establish their decision to live together by legal commitments, religious ceremonies, etc. 2. the state, condition, or relationship of being married; wedlock.

Marriage agreement will not divide after their purpose, that is marriage

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.

t 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.

Regards,

Anaita Vas