SAJI S NAIR Vs. BINDU

JUDGEMENT

(1.) THE petitioner married the first respondent on 28. 8. 1998. THEy are governed by the Hindu Marriage Act. THE second respondent is the father of the first respondent. THEy were Jiving together at the petitioner's house. For various reasons, the marriage broke down and they ceased to live as husband and wife. THEreafter, O. P. No. 284 of 1999 was filed before the Family court, seeking for a decree of divorce under Ss. 12 and 13 of the Hindu Marriage act. THEreafter, Ext. P1 petition was filed under S. 13b of the Hindu Marriage Act seeking divorce by mutual consent. Along with Ext. P1, Ext. P2 petition was also filed praying to dispense with the requirement of six months time. THE Family Court considered these petitions and rejected the same as per Ext. P3 order. THE reasons stated for rejecting Exts. P1 and P2 are as follows: Though it has been stated by the petitioner that the petitioner and the first respondent had been living separately from September, 1998 onwards, the actual date from which they started living separately had not been specifically stated. Further, it was averred in the divorce petition that the parents of the first respondent took her to Dharwad and that she is now under the care and custody of the second respondent. THErefore, according to the Family Court, the parties to the marriage are living separately from 3. 4. 1999 only. Ext. P1 was filed only on 26. 10. 1999. THErefore, the period of one year is not over and therefore, the essential requirement of S. 13b has not been complied with.

(2.) SRI. T. R. Ramachandran Nair, learned counsel for the petitioner brought to my notice a decision of the Supreme Court reported in smt. Sureshta Devi, Appellant v. Om Prakash, respondent (AIR 1992 S. C. 1904 ). The expression 'living separately' occurring in S. 13b of the Hindu Marriage Act was the subject matter of the above case. The Supreme Court dealing with the above aspect, held as follows: "9. The '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 of petition, the parties must have been living separately. The expression 'living separately', connotes to our mind 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. The second requirement that they' have not been able to live together' seems to indicate the concept of broken down marriage and it would not be possible to reconcile themselves. The third requirement is that they have mutually agreed that the marriage should be dissolved. "