SANJAY KISHAN KAUL, J. ( 1 ) ADMIT. ( 2 ) AT the request of the learned counsel for the parties the petition is taken up for final disposal. ( 3 ) THE petitioner or in fact the parties really are aggrieved by the impugned orders dated 1. 8. 2006 and 3. 8. 2006 passed by the matrimonial court rejecting the joint petition seeking dissolution of marriage filed under Section 13b (1) of the hindu Marriage Act, 1955. The petitioner had filed the petition duly supported by the affidavit and the statement of the respondent has been recorded in the court which is fully supporting the averments made in the petition. ( 4 ) THE parties were married according to Hindu rites on 3. 11. 2003 at Delhi. The petition states that the parties have not cohabited and are living separately since 28. 7. 2005. Since there are irreconcilable differences between the parties, the parties want a dissolution of marriage by mutual consent. It may also be noticed that there were complaints filed by the wife before the Crime against Women Cell and the differences between the parties were settled and a memorandum of Settlement was arrived at on 27. 7. 2006. ( 5 ) ON the presentation of the petition before the matrimonial court the same had been rejected on the ground that the minimum period of one year has not elapsed since the parties stopped living as husband and wife. This is the conclusion arrived at by the Trial Court at the stage of consideration of the petition when the wife was asked to file a copy of the complaint made to the Crime Against women Cell. In the said complaint the wife has stated that she had come back to delhi in February 2006. Since the wife was staying in the house of the husband prior to that date, the Trial Court has taken a view that the period of one year has not elapsed and there is contradiction between the complaint made and what is averred in the petition. ( 6 ) LEARNED counsel for the petitioner seeks to submit that the very premise of the Trial Court is fallacious since there is no contradiction. What has been set out by the parties is that they were living separately in the same house after 28. 7. ( 6 ) LEARNED counsel for the petitioner seeks to submit that the very premise of the Trial Court is fallacious since there is no contradiction. What has been set out by the parties is that they were living separately in the same house after 28. 7. 2005 though the wife did not physically leave the house of the husband till February, 2006. It is submitted that if the parties do not live as husband and wife but continue to stay in the same house, that would not amount to the parties staying as husband and wife. Learned counsel for the parties have referred to the judgement of the Supreme Court in Smt. Sureshta Devi Vs. Om prakash (1991) 2 SCC 25 to support this plea where inter alia what is meant by 'living separately' has been explained. It is observed in para 9 as under:"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 themselves. The third requirement is that they have mutually agreed that the marriage should be dissolved. " ( 7 ) THE aforesaid observations, in my considered view, leave no manner of doubt that even if the parties are living under the same roof but are not cohabiting or are not living as husband and wife they can be stated to be living separately. The essence is the relationship of husband and wife and not the same roof. The essence is the relationship of husband and wife and not the same roof. The next requirement of course is that marriage has broken down, which cannot be reconciled. It appears from the complaints made by the wife and the proceedings taken thereafter that the matter had come to head but fortunately with the intervention of well-wishers, the parties have decided to part amicably rather than litigating the matter. ( 8 ) IN my considered view in such a situation the Courts must encourage the amicable dissolution rather than compelling the parties to litigate or continue the relationship on paper which has actually broken down. The Trial Court fell into an error of law while solely relying on the presence of the wife and the husband under the same roof to reach a conclusion that they must be said to be not living separately. ( 9 ) THERE is a patent error in the impugned orders and the Trial Court has failed to exercise jurisdiction vested in it by law. In view of the aforesaid, I am of the considered view that the impugned orders cannot be sustained and both the orders are set aside. The Trial Court is directed to take up the petition of the parties on the basis that the period of one year has elapsed since the parties have been living separately. ( 10 ) LEARNED counsel for the parties state that the petitioner/wife is to join a course in USA by 24/8/2006 and thus request that the matter be directed to be taken up by the Trial Court on 23/8/2006 itself. Ordered accordingly. The Trial court shall take up the petition on 23/8/2006 and dispose it off on the same date after recording of statement of the parties. ( 11 ) THE petition is allowed leaving the parties to bear their own costs. Dasti to learned counsel for the parties under the signature of the Court master.