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TMI Blog1991 (2) TMI 431X X X X Extracts X X X X X X X X Extracts X X X X ..... ble. 2. The Appellant is the wife of the Respondent. They were married on 21 November 1968. They lived together for about six to seven months. Thereafter, it is said that the wife did not stay with the husband except from 9 December 1984 to 7 January 1985. That was pursuant to an order of the Court, but it seems that they did not live like husband and wife during that period also. On 8 January 1985, both of them came to Hamirpur. The wife was accompanied by her counsel, Shri Madan Ratten. After about an hour discussion, they moved a petition under Section 13B for divorce by mutual consent in the District Court at Hamirpur. On 9 January 1985, the Court recorded statements of the parties and left the matter there. 3. On 15 January 1985, the w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted to the district court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976, on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved. (2) On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in Sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the Court shall, on being satisfied, after hearing the parties and after making such inquiry as it th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ties 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 house 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. 9. Under Sub-section (2) the partie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to this conclusion from the principle underlying Order XXII Rule 1 of the Code of Civil Procedure which provides that if a suit is filed jointly by one or more Plaintiffs, such a suit or a part of a claim cannot be abandoned or withdrawn by one of Plaintiffs or one of the parties to the suit. The High Court of Delhi adopted similar line of reasoning in Smt. Chander Kanta v. Hans Kumar and Anr. (AIR 1989 Delhi 73) and the Madhya Pradesh High Court in Meena Dutta v. Anirudh Dutta (1984 11 DMC 388) also took a similar view. 11. But the Kerala High Court in K.I. Mohanan v. Jeejabai (AIR 1988 Ker 28)and the Punjab and Haryana High Court in Harcharan Kaur v. Nachhattar Singh (AIR 1988 P and H 27) and Rajasthan High Court in Santhosh Kumari v. V ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... time of filing the petition and not the time when they subsequently move for divorce decree. This approach appears to be untenable. At the time of the petition by mutual consent, the parties are not unaware that their petition does not by itself snap marital ties. They know that they have to take a further step to snap marital ties. Sub-section (2) of Section 13-B is clear on this point. It provides that on the motion of both the parties.. if the petition is not withdrawn in the meantime, the Court shall... pass a decree of divorce... What is significant in this provision is that there should also be mutual consent when they move the court with a request to pass a decree of divorce. Secondly, the Court shall be satisfied about the bona fide ..... X X X X Extracts X X X X X X X X Extracts X X X X
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