Can divorce be filed while living separately?

Yes, living separately is not only permissible but, in several contexts under the Hindu Marriage Act, 1955, forms an essential precondition for filing a divorce petition — most notably under Section 13B for mutual consent divorce, and as an underlying factor in establishing certain fault-based grounds such as desertion under Section 13(1)(ib).

Legal Position:

1. Mutual Consent Divorce (Section 13B):
Living separately for a period of one year or more is an express statutory requirement. The parties must demonstrate that they have been living apart, have been unable to live together, and have mutually agreed that the marriage should be dissolved.

2. Contested Divorce (Section 13):
Living separately is not, by itself, an independent ground for divorce under Section 13(1). However, separation often forms the factual foundation for grounds such as:

• Desertion (Section 13(1)(ib)): Requires continuous separation for two years or more, coupled with the intention to desert (animus deserendi) on the part of the respondent.
• Cruelty: Prolonged separation, particularly when accompanied by refusal to cohabit without reasonable cause, may be cited as evidence in support of a cruelty claim.
• Section 13(1A): Where a decree of judicial separation or restitution of conjugal rights has been passed and no cohabitation has resumed for one year or more, either party may seek divorce on this ground alone, independent of fault.

3. Judicial Separation as a Precursor (Section 10):
Parties may first seek judicial separation under Section 10, during which they live apart with the marriage remaining legally subsisting. If cohabitation is not resumed for one year or more following such a decree,

Thus, living separately is a critical, and in some instances mandatory, factual foundation for seeking divorce under the Hindu Marriage Act, 1955.