Mr. Ajay Sabharwal, Mr. Wamic Wasim Nargal and Mr. Zahid Laiq Ahmed, Advocates v. SANTOSH KUMAR

the HMA has been referred-to as the ‗first motion‘; and a petition under section 13B(2) has been referred-to as the ‗second motion‘. Signature Not Verified Signed By:ANJALI KAUSHIK Signing Date:17.12.2025 14:55 MAT.APP.(F.C.) 111/2025 Page 5 of 40 LEGAL POSITION SUPREME COURT VIEW

8. Before answering the questions, it must be noticed that in its decision in Smt. Sureshta Devi vs. Om Prakash,2 the Supreme Court has held that the requirement that parties must have been living separately for a period of 01-year is one of the pre-requisites for entertaining a petition under section 13B(1) of the HMA. This is what the Supreme Court has said: ―8. There are three other requirements in sub-section (1). They are: (i) They have been living separately for a period of one year, (ii) They have not been able to live together, and (iii) They have mutually agreed that marriage should be dissolved. ―9. The ‗living separately‘ for a period of one year should be immediately preceding the presentation of the petition. It is necessary that immediately preceding the presentation of petition, the parties must have been living separately. The expression ‗living separately‘, connotes to our mind not living like husband and wife. It has no reference to the place of living. The parties 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 houses 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 2 (1991) 2 SCC 25 Signature Not Verified Signed By:ANJALI KAUSHIK Signing Date:17.12.2025 14:55 MAT.APP.(F.C.) 111/2025 Page 6 of 40 themselves. The third requirement is that they have mutually agreed that the marriage should be dissolved.‖ (emphasis supplied) 9. As would be noticed from the foregoing observations of the Supreme Court, the court has enunciated 03 pre-requisites that are required to be satisfied before a petition seeking divorce by mutual consent can be presented under section 13B(1) of the HMA. The 03 pre-requisites are: 9.1. First, the parties must have been living separately for a period of at least 01-year immediately preceding the presentation of the first motion, in relation to which the Supreme Court has clarified that living separately has no reference to the place of living (parties may reside under the same roof or may reside physically apart), but refers to the parties ―not living as husband and wife‖ and ―having no desire to perform marital obligations‖, with the mental attitude of living separately for a period of at least 01- year immediately preceding the presentation of the first motion;

9.2. Second, that the parties have not been able to live together, which refers to the situation of a broken-down marriage, with no possibility of re-conciliation; and

9.3. Third, that the parties have mutually agreed that the marriage be dissolved.

10. It must be also be noticed that in a subsequent decision in Ashok Hurra vs. Rupa Bipin Zaveri, 3 another co-equal Bench of the Supreme Court, though without overturning the decision in Sureshta Devi, expressed certain reservations regarding the reasoning adopted 3 (1997) 4 SCC 226 Signature Not Verified Signed By:ANJALI KAUSHIK Signing Date:17.12.2025 14:55 MAT.APP.(F.C.) 111/2025 Page 7 of 40 in that judgment, opining that certain observations in Sureshta Devi appear to be ―very wide and may require reconsideration in an appropriate case‖. A closer reading of Ashok Hurra would however show, that the Bench did not disagree with the 03 pre-requisites referred-to above as laid-down in Sureshta Devi, but only observed that Sureshta Devi appears to have laid-down too wide a proposition when it said that the consent of parties must continue till the divorce decree is passed. In another subsequent decision in Anil Kumar Jain vs. Maya Jain,4 a

11. 02-Judge Bench of the Supreme Court also re-affirmed the principles laid down in Sureshta Devi, though it again resolved the impasse between the couple in that case by invoking their powers under Article 142 of the Constitution of India to grant relief, even though continuing mutual consent was not forthcoming.

12. Marking a change in the view however, in Amardeep Singh vs. Harveen Kaur,5 in which case the parties had been living separately for over 08 years and were agreed that there was no possibility of reunion, for the first time a 02-Judge Bench of the Supreme Court held that the 06-month waiting period prescribed under section 13B(2) of the HMA is not mandatory but directory; and further observed that the ―court‖ possesses the discretion to waive the 06- month statutory period prescribed under section 13B(2) of the HMA, 4 5

the HMA has been referred-to as the ‗first motion‘; and a petition under section 13B(2) has been referred-to as the ‗second motion‘. Signature Not Verified Signed By:ANJALI KAUSHIK Signing Date:17.12.2025 14:55 MAT.APP.(F.C.) 111/2025 Page 5 of 40 LEGAL POSITION SUPREME COURT VIEW

8. Before answering the questions, it must be noticed that in its decision in Smt. Sureshta Devi vs. Om Prakash,2 the Supreme Court has held that the requirement that parties must have been living separately for a period of 01-year is one of the pre-requisites for entertaining a petition under section 13B(1) of the HMA. This is what the Supreme Court has said: ―8. There are three other requirements in sub-section (1). They are: (i) They have been living separately for a period of one year, (ii) They have not been able to live together, and (iii) They have mutually agreed that marriage should be dissolved. ―9. The ‗living separately‘ for a period of one year should be immediately preceding the presentation of the petition. It is necessary that immediately preceding the presentation of petition, the parties must have been living separately. The expression ‗living separately‘, connotes to our mind not living like husband and wife. It has no reference to the place of living. The parties 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 houses 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 2 (1991) 2 SCC 25 Signature Not Verified Signed By:ANJALI KAUSHIK Signing Date:17.12.2025 14:55 MAT.APP.(F.C.) 111/2025 Page 6 of 40 themselves. The third requirement is that they have mutually agreed that the marriage should be dissolved.‖ (emphasis supplied) 9. As would be noticed from the foregoing observations of the Supreme Court, the court has enunciated 03 pre-requisites that are required to be satisfied before a petition seeking divorce by mutual consent can be presented under section 13B(1) of the HMA. The 03 pre-requisites are: 9.1. First, the parties must have been living separately for a period of at least 01-year immediately preceding the presentation of the first motion, in relation to which the Supreme Court has clarified that living separately has no reference to the place of living (parties may reside under the same roof or may reside physically apart), but refers to the parties ―not living as husband and wife‖ and ―having no desire to perform marital obligations‖, with the mental attitude of living separately for a period of at least 01- year immediately preceding the presentation of the first motion;

9.2. Second, that the parties have not been able to live together, which refers to the situation of a broken-down marriage, with no possibility of re-conciliation; and

9.3. Third, that the parties have mutually agreed that the marriage be dissolved.

10. It must be also be noticed that in a subsequent decision in Ashok Hurra vs. Rupa Bipin Zaveri, 3 another co-equal Bench of the Supreme Court, though without overturning the decision in Sureshta Devi, expressed certain reservations regarding the reasoning adopted 3 (1997) 4 SCC 226 Signature Not Verified Signed By:ANJALI KAUSHIK Signing Date:17.12.2025 14:55 MAT.APP.(F.C.) 111/2025 Page 7 of 40 in that judgment, opining that certain observations in Sureshta Devi appear to be ―very wide and may require reconsideration in an appropriate case‖. A closer reading of Ashok Hurra would however show, that the Bench did not disagree with the 03 pre-requisites referred-to above as laid-down in Sureshta Devi, but only observed that Sureshta Devi appears to have laid-down too wide a proposition when it said that the consent of parties must continue till the divorce decree is passed. In another subsequent decision in Anil Kumar Jain vs. Maya Jain,4 a

11. 02-Judge Bench of the Supreme Court also re-affirmed the principles laid down in Sureshta Devi, though it again resolved the impasse between the couple in that case by invoking their powers under Article 142 of the Constitution of India to grant relief, even though continuing mutual consent was not forthcoming.

12. Marking a change in the view however, in Amardeep Singh vs. Harveen Kaur,5 in which case the parties had been living separately for over 08 years and were agreed that there was no possibility of reunion, for the first time a 02-Judge Bench of the Supreme Court held that the 06-month waiting period prescribed under section 13B(2) of the HMA is not mandatory but directory; and further observed that the ―court‖ possesses the discretion to waive the 06- month statutory period prescribed under section 13B(2) of the HMA, 4 5