If a married couple wants divorce by mutual consent, it is not a court’s business to deny them judicial separation by insisting on knowing the reason for their decision, the Madras high court has said.

Noting that a court could not act like a fact-finding authority, a division of Justice K K Sasidharan and Justice N Gokuldas said: “In case the marriage is a failure and the parties wanted to put an end to the marital bond, the court should respect the sentiments and grant divorce. It is not the intention of the legislature to deny divorce inspite of the parties taking a conscious decision to part ways.”

Rapping a family court in Tirunelveli for having dismissed a joint divorce plea filed by a couple that had been living separately for more than a year, the judges said: “Once it is convinced that it would not be possible for the parties to live together and that they have opted to dissolve the marriage peacefully the endeavour of the court must be to grant a decree of divorce rather than compelling them to live separately even thereafter.”

In the current case, the couple was married in May 2013, but started living separately from July 2014 onwards. In 2015, they filed a joint petition for dissolution of the marriage, but it was rejected by the court on the ground that they had not mentioned the reasons for their separation.

The bench, disapproving of the order and setting it aside, said that under Section 13-B(2) of the Hindu Marriage Act, a court has to satisfy as to whether the marriage has been solemnised and that the averments in the petition are true. “In case the parties have been living separately for one year before the initiation of the joint petition for divorce and that there is no scope for reunion, normally, the court has no other option than to grant the degree of divorce,” the judges said.

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The only reason assigned by the family court to dismiss the petition is that the parties have not assigned any reason for not being able to live together, the bench said, adding:
“Whatever may be the reason, psychological or otherwise, it stands established that the parties have not been able to live together, and have been living separately from July 18, 2014 onwards. The parties have mutually agreed that their marriage should be dissolved. This is all Section 13-B of the Act requires, and when that ingredient stands satisfied, it is not possible to throw out the joint petition against the wishes of the parties.”

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