Parties Agreeing To Mutual Divorce After Living Separately For More Than A Year Doesn't Negate Separation: Allahabad High Court

The Allahabad High Court has held that just because the parties agreed for mutual divorce after more than 1 year of separation period, the Court cannot neglect the separation period prior to the agreement for divorce. It held that the period of separation prior to the meeting of minds will be considered under sub-section (1) in section 13-B of the Hindu Marriage Act, 1955.

Section 13-B of the Hindu Marriage Act, 1955 provides for divorce by mutual consent. Sub-section(1) of section 13 provides that petition for divorce by mutual consent can be presented by parties together on the grounds that they have been living separately for one year or more and that they have not been able to live together and the marriage must be dissolved. Sub-section (2) provides the procedural aspect for deciding such petition.

The bench of Justice Arindam Sinha and Justice Avnish Saxena held

“Requirement under sub-section (1) in section 13-B 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.”

Parties got married in 2004 and had three children. Thereafter, certain differences arose between them and they started living separately from 12^th January, 2022. On 1^st August, 2023, the parties agreed to file divorce by mutual consent. The Family Court Judge rejected the divorce petition by treating the date of separation from 2^nd August, 2023, the next day of the mutual consent.

This order of the Family Court was challenged before the High Court.

The parties were called to Court, and upon being asked, they stated that they wanted the marriage dissolved and the custody of the children was to remain with the mother.

The Court observed that the parties had lived separately for more than one year period before filing the petition for divorce by mutual consent and that they had no physical relations since 2013. It observed that the 6 months cooling-off period has also been observed by the parties.

Holding that cause of action is a bundle of facts, the Court held that merely because the parties decided to file for mutual divorce on 1^st August, 2023, it cannot be said that the parties were together on the said date.

Accordingly, the Court dissolved the marriage between the parties and ordered that the decree for divorce be drawn.

Case Title: Smt. Minakshi Gupta v. Kailash Chandra [FIRST APPEAL DEFECTIVE No. - 207 of 2025]

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