- The Madhya Pradesh HC has held, in the case of Vishal Kushwaha vs Mrs. Ragini Kushwaha that the period of one year of living in separation is a must for the filing of an application for divorce by mutual consent under section 13B(1) of the Hindu Marriage Act and the same cannot be condoned under section 14 of the Act.
- The instant appeal was filed under section 28 of the Hindu Marriage Act (HMA) against the decree of the lower Court wherein a joint application made by Vishal Kushwaha and his wife Ragini Kushwaha was rejected on the ground that the application had been filed before the period of one year under section 14 of HMA.
- The Counsel for the applicant contended that the said application had been filed after 7 months and 24 days of the marriage. The parties had been living separately for a period of 7 months prior to the filing of the application. The Court had rejected the application for the reason of its being premature. Aggrieved, the husband had filed the present appeal.
- The Counsel for the appellant had placed reliance on the decision of the Calcutta HC in the case of Priyanka Maity (Ghosh) vs Shri Sabyasachi Maity AIR 2012 Cal. and argued that under section 14 of HMA a petition for dissolution of marriage by mutual consent can be filed before the statutory period of one year and that it is not mandatory to comply with mathematical precision. He also argued that the provisions of section 14 are directory and not mandatory. As the petition was pending before the Court for more than a year, that should be considered a substantial compliance of section 14(1) of the Act.
- It was further argued that the period of one year can be waived by the Court itself in light of the proviso to section 14(1) when the Court sees that there are no chances that the parties can live together harmoniously as husband and wife.
- The HC observed that the period of one year can be waived under the proviso to section 14(1) only in cases of exceptional hardship or exceptional depravity, but the same cannot have the effect of diluting the mandate of section 13(B)(1) of the Act, which clearly mandates the separation of one year between the parties before the presentation of their joint divorce petition.
- The Court observed that the period of one year as envisaged in section 13(B)(1) of the Act is a part of the substantive law and is not a procedural formality that can be done away with. The provision of living separately for one year is mandatory and not directory and this requirement should be satisfied before the Court grants any relief.
- In arriving at its decision, the Court relied upon the decisions in Amardeep Singh vs Harveen Kaur (2017) SCC and Principal Judge, Family Court vs NIL AIR 2009 Bom.
- Thus, finding no merit in the application, the same was dismissed.
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