“Living Separately” Means Ending Marital Duties, Not Just Living Apart

Source: Patna High Court 

Why in News? 

A Division Bench of the Patna High Court, comprising Justice Nani Tagia and Justice Alok Kumar Pandey, in Kumari Vagisha v. Kumar Sangam (2026), dismissed a miscellaneous appeal filed against the order of the Principal Judge, Family Court, Sheohar, which had rejected a joint petition for divorce by mutual consent filed under Section 13B of the Hindu Marriage Act, 1955. 

• The Court held that the expression "living separately" under Section 13B does not refer to mere physical separation but to the complete cessation of marital obligations coupled with an intention not to resume cohabitation. Since the husband had admitted to resuming conjugal relations within the statutory one-year period, the statutory requirement was held to be unsatisfied.

What was the Background of Kumari Vagisha v. Kumar Sangam (2026) Case? 

• The appellant and the respondent were married on 28.04.2021 as per Hindu rites. A girl child was born from the wedlock 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. 
• A joint petition under Section 13B of the Act was filed on 11.05.2023, accompanied by a detailed settlement agreement. Under the settlement, the husband agreed to pay ₹20 lakh as permanent alimony and ₹2 lakh towards the child's maintenance through a fixed deposit, with custody of the minor child remaining with the mother. The parties also agreed to withdraw all pending criminal cases and not to initiate future litigation. 
• However, during proceedings, the husband (AW-1) admitted that he had resumed conjugal relations with the appellant on 15.03.2023 — less than two months prior to the filing of the joint petition. Relying on this admission, 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 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 between the parties.

What were the Court's Observations? 

• On the Meaning of "Living Separately": The Court held that the expression "living separately" under Section 13B does not refer to mere physical separation. Parties may reside 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 presentation of the petition. 
• On the Statutory Requirement: 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. Such conduct clearly indicated the continuation of marital relations within the statutory period, and the Family Court had rightly concluded that the one-year requirement of "living separately" was not fulfilled. 
• On Liberty to File Fresh Petition: 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 that the same be decided afresh in accordance with law, without being influenced by the earlier judgment. 

What is Section 13B of the Hindu Marriage Act, 1955? 

Section 13B — Divorce by Mutual Consent: 

Section 13B of the Hindu Marriage Act, 1955 provides for dissolution of marriage by mutual consent through a two-stage process: 

Sub-section (1) — First Motion (Joint Petition): Both parties may jointly present a petition before the District Court for dissolution of marriage by a decree of divorce, provided: 

• They have been living separately for one year or more; 
• They have not been able to live together; and 
• They have mutually agreed that the marriage should be dissolved. 

This provision applies to marriages solemnised both before and after the Marriage Laws (Amendment) Act, 1976. 

Sub-section (2) — Second Motion (Decree of Divorce): After the joint petition is presented, the court passes a decree of divorce only when: 

• Both parties make a motion not earlier than six months and not later than eighteen months after the date of the first petition; 
• The petition has not been withdrawn in the meantime; and 
• The court, after hearing the parties and making such inquiry as it thinks fit, is satisfied that the marriage was solemnised and that the averments in the petition are true. 

The decree dissolves the marriage with effect from the date of the decree.