Divorce by Mutual Consent

This article is written by Anubhav Pandey, where he has discussed how a couple can divorce his/her spouse by Mutual Consent in India.

It is not disputed that, as per Hindu law, divorce was not recognized as a means to put an end to marriage which was always considered to be a sacrament with only exception where it is recognized by custom.

Hindus after coming into force of the Hindu Marriage Act, 1955 can seek to put an end to their marriage by either obtaining a declaration that the marriage between them was not valid on the grounds (a person already has a spouse at the time of marriage, within prohibited degree of relationship, couples are not sapindas of each other) or other provision of Hindu Marriage Act, 1955.

Divorce Through Mutual Consent

Under the Hindu Marriage Act, 1955 both the husband and the wife have been given a right to get their marriage dissolved by a decree of divorce on more than one grounds specifically enumerated in Section 13.

Section 13-B (divorce by mutual consent ) makes provision for divorce by mutual consent on the ground that-

  • Both the parties to the marriage have been living separately for a period of one year or more,
  • They have not been able to live together, and
  • They have now mutually agreed for the dissolution of the marriage.

Couples might find incompatibility between them and might file for a petition of divorce by mutual consent. It is a novel approach but, at times, situation arises where divorce by mutual consent becomes difficult.

Eg- where a husband tries to bargain on the conditions of divorce or times where wife out of conspiracy marries a person and demands big price for giving divorce through mutual consent (mostly involved with cases of 498A). [1]

Procedure to be followed for filing a petition of divorce by mutual consent-

  •  Both the parties need to file together a petition seeking divorce before the District court.
  • Before filing of the petition, married couple should make sure that they are living separately for a period of one year or more. After petition is allowed, parties are required for filing of statement.

If any party is not available, any such family member of such party may file the statement on his behalf. Once this is done, ‘First motion’ is established.

  • Couple seeking divorce by mutual consent will have to give reason why they are not able to live together and mention in the petition that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.
  • Court after a period of 6 months and not more than 18 months (cooling-off period) will give a date for listening to the parties.

If the case is withdrawn or the parties do not move to court at the given date(s), the petition stands cancelled. After hearing to the parties and on being satisfied, court may pass a decree of divorce declaring the marriage to be dissolved.

Paper Requirement

  1. Income Tax returns (3 years),
  2. Details of present income,
  3. Birth and family details, and
  4. The details of the assets.

Which court to approach? (jurisdiction)

  • Court can be one where couple seeking divorce last lived.
  • Court can be one where marriage was solemnized.
  • Court can be one where wife is residing as of present.

Court is expected to confine its inquiry on the following aspects-

  • Whether the marriage has been solemnized between the parties;
  • Whether the parties have been living separately for more than a year before presenting the petition;
  • Whether they were not able to live together at the time of presenting the petition and continue to live apart;
  • Whether they had mutually agreed to dissolve the marriage before or at the time the petition was presented, and
  • Whether the averments made in the petition are true and conditions under section 23 are fulfilled.

On making limited inquiry, if the Court is satisfied that aforesaid conditions are fulfilled, the decree of divorce deserves to be passed in such matter.[2]

Where before  marriage wife had sexual relation with someone else and as a result of it conceived a child, the court allowed for divorce by mutual consent when both the husband and wife agreed to it irrespective of the family opinion and pressure.[3]

What Happens When the Married Couples Are Living Separately for Many Years?

What happens when the married couples are living separately for many years?Does this account for a ground for a valid divorce?

Yes, it is a valid ground for divorce but, there is no provision under the Hindu Marriage Act which provides for automatic dissolution of marriage. The dissolution of marriage as per custom and usages is one of the modes of dissolution of marriage recognized under the law. In general, the marriage can be dissolved only by recourse to the provisions contained in the Hindu Marriage Act.

What Happens When Consent To Divorce is Obtained by Force, Fraud or Undue Influence?

  1. The provisions of section 23(1)(bb) of the Hindu Marriage Act require the Court to satisfy itself that consent for divorce under section 13-B has not been obtained by force, fraud or undue influence.
  2. It is court’s duty to figure out the reasonableness of the case and to ensure while looking at the facts that the consent is not viciously obtained. An appeal against the decree of divorce is allowed as there can be situations where even court fails to ensure that consent given for divorce is not free.[4]

What is significant in this provision is that there should also be mutual consent when they move to court with a request to pass a decree of divorce. The court shall be satisfied about the bona fides and the consent of the parties.

If there is no mutual consent at the time of the enquiry, the court gets no jurisdiction to make a decree for divorce. The court could make an enquiry and pass a divorce decree even at the instance of one of the parties and against the consent of the other.

Such a decree cannot be regarded as decree by mutual consent.

Is the Statutory Cooling Off Period of 6 Months Mandatory?

In many important cases, the apex court has taken the view that the statutory period of 6 months is meant as it will provide the couple seeking divorce to rethink on the issue and also will give more time to the family members so that, any chance of reconciliation, if possible, meets its end. [5]

  • The said waiting period of six months can be waived in a suitable case because, in each case, it cannot be insisted that the parties should go through the futile and meaningless ceremony of again waiting for completion of six months.

Eg- where the applicants are already living separately for a period of 6 years. Therefore, when court is fully satisfied on the proved facts that marriage tie should be severed by mutual consent immediately, since the parties have been living separately for more than the time prescribed under section 13-B( 6 months) and that they have been fighting for sufficiently long period and, in such a case, instant decree of divorce can be granted.[6].

Maintenance to Be Awarded In Case of Divorce by Mutual Consent

In cases of divorce by mutual consent the alimony or maintenance is to be fixed by the party through mutual agreement.

  • As per the agreement between the divorcing husband and wife (If they want it) a particular sum for alimony or maintenance is to be given either by the husband to wife or wife to husband as the case may be.
  • Maintenance are generally decided on grounds such as-gross sum or such monthly or periodical sum for a term not exceeding the life of the applicant as, having regard to the respondent’s own income and other property.

Custody of Child After Divorce by Mutual Consent

Since, the divorce is by mutual consent the couple have to come to an agreement as of who will hold the custody of the child.

  1. Joint custody is the new legal solution situations where a deadlock is created as both the parents want their offspring.
  2.  A joint custody is such where only one of the parent will have physical custody while both will have legal custody.[7]
  3. Child’s wish and interest are kept in mind by the court all throughout.

Bonus Read: What’re the grounds for dissolution of marriage?

New Scenario of Divorce by Mutual Consent

Today wives are not ready to merely live at the mercy of their husbands and the members of their family.

In 1978, a dispute as to the choice of matrimonial home had arisen between a husband and wife who were employed at two different places before their marriage. The question was as to whether the right to chose the matrimonial home is vested with the husband only or also with the wife.

“With more and more women taking up jobs and wanting to retain them even after their marriage, the question becomes increasingly important and controversial.”

There arose a dispute because of husband’s low financial status who was in Delhi and on the contrary wife’s excellent financial condition who was in Kanyakumari[8]. A solution of divorce through mutual consent was suggested in such situation.

Divorce by Mutual Consent in Case of Marriage with An NRI

  • If the marriage is solemnized through Hindu law, divorce through mutual consent is the easiest way to get judicial separation as the country’s law on divorce when married to NRI is not strong enough.
  • Both the couple if married under the Hindu law can approach the right court as mentioned in the above procedure and get a divorce by mutual consent.

That’s all about “Divorce By Mutual Consent In India” for now. I hope the article evoked you to think about divorce from a different perspective.

However, we’d love to know your point-of-view about the topic so, don’t wait! Drop your comments with the split of the hat in the comments box below & let the discussion flow :)

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References:

[1] (1997) 8 SCC J-11

‘Irretrievable Breakdown of Marriage’ as Ground of Divorce — Need for Inclusion by BD Agarwall
[2] Mittal Ramesh Panchal v Nil, 2013 SCC Online Bom 1714
[3] 2015 SCC OnLine Cal 7170, Sri. Anupam Majhiv.Smt. Minu Majhi (Halder)
[4] Sushma v Pramod, 2009 SCCOnl Bom 399
[5] Subhasree Datta In Re,2008 2 CHN 303
[6] 2012 SCC OnLine Bom 1401
[7] http://www.businesstoday.in/moneytoday/cover-story/divorced-all-you-need-to-know-about-child-custody-rights/story/192716.html
[8] Swaraj Garg v. K.M Garg, AIR 1978 Del 296

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