CASE TITLE : Miten v. Union of India
DATE : 27 March 2008
CITATION: W.P. (Lodging) No. 2412 of 2007
CORAM : Chief Justice Swatanter Kumar and Justice J.P. Devadhar
JUDGMENT : Bombay High Court
SUBJECT/THEME : Dissolution of marriage by mutual consent


Divorce by mutual consent is the termination of marriage with the free will and consent of the parties. The parties are at a consensus with respect to their decision to dissolve the marriage. It is one of the least tedious procedures of getting a divorce since the parties respectfully put an end to their marriage without causing a lengthy court battle.


The present case pertains to a petition for a consensual divorce filed by two parties after undergoing separation for a duration shorter than the one prescribed in Section 13B of The Hindu Marriage Act, 1955 (hereinafter referred to as The Act).

Petitioner 1 and Petitioner 2 got married to each other on 29th April, 2007. Their marriage took place in accordance with Hindu customs and rites as laid down under The Act. The marriage was also registered as per The Act.

For a brief period after the marriage, as the parties were cohabiting with each other, they realized that they were not meant for each other. As a result, matrimonial differences arose between the parties, to the point where they were certain that their marriage was irredeemable and incapable of being saved.

Hence, both the parties parted ways and started living separately from 2nd August, 2007.

Futile attempts were made for reconciliation and resettlement of the matrimonial home but to no avail. In order to avoid unnecessary legal complications, the parties unanimously decided and mutually consented to terminating their matrimonial relationship by filing a petition for dissolution of marriage under Section 13B of The Act. Neither of the parties made any allegations against each other. After the lapse of six months after the marriage, the present petition was filed by the parties on 30th October, 2007.

The matter was taken up by the Ld. Principal Judge of the Family Court, who, vide order dated 30th October, 2007, rejected the petition.

Upon rejection of their petition, the parties filed a Writ Petition before the Hon'ble High Court of Bombay (hereinafter referred to as the Hon'ble Court) on the ground that the Ld. Principal Judge Family Court had erred in rejecting their petition for divorce and as such his decision was unconstitutional.


  1. Whether the provisions of Section 13B of The Act are constitutionally valid and in consonance with the changing values of the society insofar as they relate to the prescribed separation period of one year prior to filing of a petition for divorce?
  2. Whether the separation period of one year before filing of divorce as mandated by Section 13B of The Act is arbitrary and unreasonable in nature?


Section 13B of The Act

Sub-section 1 of Section 13B lays down three conditions as a prerequisite to filing for a petition for divorce by mutual consent. They are as follows:

  1. The period of living should be 1 year or more, immediately following which the petition for divorce must be presented, i.e. a one year period or more must have elapsed before filing the petition.
  2. The parties due to various reasons have not been able to live together
  3. The parties have, with their own free will, agreed to dissolve their marriage.

Sub-section 2 of Section 13B provides for the lapse of another additional period of minimum 6 months and not more than 18 months before proceeding with the second motion.


Section 13B of The Act categorically states that a marriage can be dissolved by a decree of divorce which can be presented by both the parties to a marriage before a Court of Law subject to certain conditions which include but are not limited to the parties having been living separately for a period of one year or more before such a petition of divorce is the presented before the Court of Law.. The provision does not allow the parties to come to the court for divorce by mutual consent unless they complete the period of one year or more of separation. The period of living separately for one year should be immediately preceding the presentation of the petition for divorce.

In the view of the Hon'ble Court the term living separately does not connote an actual departure of the spouses from their place of living. Due to the force of circumstances the parties may continue to live under the same roof. For instance, if a couple wishes to seek a divorce during the period of a lockdown, then the mandatory requirement of separation cannot be fulfilled if taken literally. The spouses would have to cohabit but if they continue living together without acting as a husband and wife, then their period of living separately would be considered proper. Thus, the only important condition is that the petitioners should not be living as husband and wife. This is because living or not living under the same roof does not determine the existence of a matrimonial relationship. If a husband and wife are able to fulfill their matrimonial obligations towards each other despite being apart in terms of distance, their marriage would not be affected by their residency in two different places.

In case of 'living separately', the parties must have an unequivocal state of mind and attitude that they do not want to fulfill their matrimonial obligations towards each other.

In the present case, despite this clear provision under Section 13B, the petition was not only filed once before the Ld. Principal Judge of the Family Court but also after the rejection of that petition a Writ Petition before the Hon'ble Court was filed to insist upon an order in the favor of the petitioners. In my opinion, it was absurd on the part of the petitioners to challenge the order of the Ld. Principal Judge Family Court by way of a Writ Petition when instead the legal recourse of preferring an appeal could be opted by them.

Now, coming to the Constitutional validity of this provision. It is pretty apparent that making divorce too easy or too difficult would frustrate the objective and intent of the legislature which in my opinion is granting freedom to individuals to terminate their marriage if it is incapable of redemption and at the same time preventing its overuse or misuse and preserving the sanctity of marriage as an institution. The rule and test of reasonableness must be applied in such cases. In divorce cases, the court must not only consider the success or failure of a legal action, but also the social problem and stigma attached to the dissolution of a marriage that requires a socially desirable, humane, and just solution.

Restrictions imposed with respect to dissolution of marriage are coherent with the principles of reasonableness of human behavior that one ought to think objectively, purposefully, and refrain from making impulsive decisions. They cannot be termed as arbitrary or unreasonable. Human behavior is not perpetual. It changes with the passage of time and the circumstances. Such critical decisions must be made with objectivity and rationality, and they should not be taken lightly in order to avoid minor inconveniences. Divorce should not be thought of as a solution to every minor difference or minor inconvenience in married life. By means of communication, most such disputes can be amiably resolved if parties avoid taking decisions regarding dissolution of marriage with haste.


The Writ Petition challenging the constitutionality of the order passed by the Family court was dismissed by the Hon'ble Court being devoid of merits. The Hon'ble Court upheld the constitutionality of Section 13B in the present case.

The Apex Court held that merely because a statute causes hardships it cannot be said to be ultra vires. In the present case, the constitutionality of Section 13B of The Act cannot be questioned because the mandatory requirement of the separation of one year prior to filing for a petition for divorce is not violative of the right to equality. It does not affect the principle of equality before the law or equal protection of law.

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