Hindu Marriage Act | Living Separately U/S 13B Defined By Cessation Of Marital Obligations, Regardless Of Physical Residence: Patna HC

A Division Bench of Justice Nani Tagia and Justice Alok Kumar Pandey was hearing a miscellaneous appeal against the judgment dated 06.06.2023 passed by the Principal Judge, Family Court, Sheohar, which had rejected a joint petition filed under Section 13B of the Act. Justice Alok Kumar Pandey authored the judgment.

The appellant and respondent were married on 28.04.2021 as per Hindu rites. Out of the wedlock, a girl child was born on 19.03.2022. Due to marital discord, the parties began living separately from March 2022 and decided to dissolve the marriage by mutual consent.

Accordingly, a joint petition under Section 13B of the Act was filed on 11.05.2023, accompanied by a detailed settlement. Under the agreement, the husband undertook to pay ₹20 lakh as permanent alimony and ₹2 lakh towards the child's maintenance through fixed deposit, with custody of the minor child remaining with the mother. The parties also agreed to withdraw pending criminal cases and not to initiate future litigation.

However, during the proceedings, the husband (AW-1) admitted that he had established conjugal relations with the appellant on 15.03.2023 - less than two months prior to filing of the joint petition. Relying on this statement, the Family Court held that the statutory requirement of the parties living separately for at least one year immediately preceding the petition was not satisfied, and dismissed the petition.

Before the High Court, the appellant contended that the Family Court had erred in relying solely on the husband's statement without considering the pleadings and affidavits filed by both parties asserting separation for over one year. It was further argued that the Court failed to record the appellant's statement and did not properly appreciate the settlement entered into between the parties.

The High Court examined the scope of Section 13B and emphasised that the Court must be satisfied, upon inquiry, that the parties have been living separately for a continuous period of at least one year immediately preceding the presentation of the petition. Interpreting the expression “living separately”, the Court observed:

“…While analyzing the statutory provision as mentioned in Section 13(B) of the Act the 'living separately' for a period of one year should be immediately preceding the presentation of the petition. "Living separately" means not living as husband and wife, regardless of physical residence. Parties may live under the same roof yet be separated in law, or live in different places yet continue a marital relationship. The essential requirement is a complete cessation of marital obligations, coupled with an intention not to resume cohabitation, for a continuous period of one year immediately preceding the petition.”

Applying this principle, the Court noted that the husband's admission of having resumed conjugal relations on 15.03.2023 was directly inconsistent with the requirement under Section 13B. It held that such conduct clearly indicated continuation of marital relations within the statutory period. The Court thus found that the Family Court had rightly concluded that the requirement of “living separately” for one year had not been fulfilled.

Accordingly, holding that there was no illegality or infirmity in the impugned judgment, the High Court dismissed the appeal.

However, taking note of a joint compromise petition filed during the pendency of the appeal on 17.02.2026, the Court granted liberty to the parties to file a fresh petition under Section 13B before the Family Court within four weeks, directing the court to decide the same afresh in accordance with law, without being influenced by the earlier judgment.

Case Title: Kumari Vagisha v. Kumar Sangam

Case No.: Miscellaneous Appeal No. 807 of 2024.

Appearance: Mr. Sanjay Kumar appeared for the Appellant. Mr. Sunil Kumar Pandey appeared for the Respondent.