MITEN SHYAMSUNDER MOHOTA Vs. UNION OF INDIA

JUDGEMENT

(1.) Simple but a pertinent question of law challenging the constitutional validity of provisions of Section 13B of Hindu Marriage Act, 1955 (hereinafter referred to as the 'Act') insofar as it relates to the prerequisite period of separation for one year for institution of petition under section 13B of the Act, as mandatory and also on the ground that it is arbitrary and has no nexus to the object of the said provision, arises in this petition.

(2.) The petitioner No.1 was married to the petitioner No.2 on 29th April, 2007, according to Hindu rites and customs. The marriage between the parties was registered in accordance with law. After marriage, the parties cohabited at Bombay till 2nd August, 2007 when matrimonial differences arose between the parties. According to them, the parties realized that they were not suitable to each other, their marriage had irretrievably broken down and there was no possibility of saving the marriage. There are no issues from the wedlock. Since 2nd August, 2007, the parties are living separately. Attempts for reconciliation and resettlement of the matrimonial home failed. Resultantly, with an intention to avoid any legal complications and to ensure that they do not litigate any further and to put an end to the matrimonial relationship by mutual consent without making any allegations against each other, the parties applied for dissolution of marriage by a decree of divorce by mutual consent under the provisions of section 13B of the "Act". This petition for divorce by mutual consent was filed on 30th October, 2007.

(3.) When the matter came up before the learned Principal Judge of the Family Court, vide order dated 30th October, 2007, the petition was rejected. The petitioners, rather than assailing the said order in appeal, filed the present writ petition on the ground that the reasons recorded by the learned Principal Judge Family Court, for rejecting the petition were unconstitutional. The order dated 30th October, 2007 reads as under: