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Divorce by mutual consent under Hindu Marriage Act, 1955 and varying judicial response to it

July 23, 2021

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This article is written by Amrutha Bawgi, pursuing law from Presidency University, Bangalore. This article will explore mutual divorce as per the Hindu Marriage Act, 1955 and also explains the procedure to obtain a divorce by mutual consent.

Table of Contents

Introduction

Marriage is seen as a sacred lifelong alliance; it is not merely a relationship between two people, but also between two families. Nonetheless, it is a relationship between two individuals, and because no human being is flawless, it is quite likely that two people will not feel compatible enough to live together for the rest of their lives. As a result, even in nations like India, where marriages are said to be formed in heaven, divorce rates are rapidly increasing. In these situations, it is usually preferable for a couple to divorce by mutual consent to prevent further disagreements and waste of time and money.

This article will primarily focus on the concept of divorce based on mutual consent. The provision of divorce on mutual consent is covered under Section 13B of the Hindu Marriage Act, 1955, and Section 28 of the Special Marriage Act, 1954.

The perception of the Hindu Marriage Act, 1955 on divorce by mutual consent

Mutual consent is a ground for divorce under the Hindu Marriage Act. Section 13B was added to this Act by an amendment in 1976. This provision is retrospective as well as prospective from the commencement, which means that the parties whose marriage is solemnized before or after the amended Act can seek relief under this provision.

Section 13B of the Act

Section 13B of the Act lays down the essential requirements and procedures for parties seeking a divorce based on mutual consent:

Subject to the provisions of this Act, a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to marriage together, whether such marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976, on the ground that they have been living separately for one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.
On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in the preceding paragraph and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.

Essential ingredients of Section 13B

The parties should be living separately for at least one year.
The parties have not been able to live together.
The parties mutually agreed to resolve the marriage.

Parties should be living separately for at least one year

What does the expression ‘living separately’ mean

‘Living separately’ means not just physical separation or staying in different places, but also living under the same roof due to circumstances but not like husband and wife. It means the parties are not fulfilling their marital duties.

In the case of Suresh Devi v. Om Prakash (1991), it was held that living separately does not necessarily mean living in different places. The phrase ‘living separately’ means not living together as husband and wife. It does not refer to where you live. Even though the parties may live under the same roof due to circumstances, they may not be living as husband and wife. What appears to be crucial is that they have no willingness to fulfil marital commitments, and as a result, they have been living apart for a year before the filing of the petition. The spouses should live separately for at least one year before filing a petition.

Parties have not been able to live together

After the first essential condition is fulfilled the second essential must be established that the parties have not been able to live together.

The Supreme Court, in Sureshta Devi v. Om Prakash (1991) observed that the phrase ‘had not been able to live together’ tends to imply a marriage that has broken down to the point where there is no hope of reconciliation. The very fact that they have filed a suit for a divorce petition is evident of the fact that the parties are not able to live together. However, it is critical to ascertain whether both parties’ consent was freely provided and not obtained through coercion, fraud, or undue influence.

Parties mutually agreed to resolve the marriage

In some cases, the partners may decide to give their marriage another try and address their differences amicably. The parties may be able to reconcile and make their relationship work during the waiting period. After the first motion is granted, the parties have 18 months to file the second motion, and if they do not do so within that time, both parties are presumed to have mutually withdrawn their consent.

In the case of Pradeep Pant v. Govt of NCT Delhi (2012), the wife and the husband had a daughter but due to some issues they were not able to live together and started living separately. They could not live together. They filed for a divorce based on mutual consent and decided on the child’s custody, maintenance, etc., without any influence. After filing the petition, they were given a 6-month waiting period, also known as a cooling period which may extend up to 18 months, to give the couple a rethink about the decision.

Why is the period of interregnum given?

There is a cooling period starting from 6 months to 8 months before finalizing a divorce. This period is given to give both the parties time to rethink their decisions to divorce. It gives them a second chance to rethink their marriage. But this waiting period is not mandatory, it is discretionary.

In the case of Amardeep Singh v. Harvenn Kaur (2017), the couple had some internal disputes and things went bad from civil to criminal proceedings. The couple no longer wanted to live together. They settled alimony, custody, maintenance, etc. already, and they did not want to be associated with each other. The Supreme Court had held that delaying the divorce would only hurt them, so it waived off the cooling period and the divorce was finalized.

Is silence at the second stage enough to represent withdrawal?

What happens if one of the parties who filed for divorce under mutual consent does not show up after the six-month time has passed? Will it be considered a withdrawal of consent? These questions were addressed by the Rajasthan High Court in the matter of Suman v. Surendra Kumar (2002). The husband, in this case, did not show up for hearings after submitting a joint consent divorce petition. In the absence of both parties, the family court ruled that no decree could be issued. “When one party has himself left the subject matter for inference, the inference ought to be made in favour of consent rather than the absence of consent,” the court held. It was held that silence could not be taken into account for withdrawal of consent.

Whether consent can be unilaterally withdrawn

If one party changes its mind and wants to save his/her marriage then that party can file an application before the Court where their proceeding for divorce is going on, stating that he/she wants to withdraw his/her consent for the divorce as he/she wants to give a second chance to their marriage. In case if both husband and wife agree to the withdrawal then both can withdraw the case mutually and the court can dismiss such a petition.

The court grants no divorce decree in case either of the spouses files an application before the court declaring that he/she doesn’t want to pursue Divorce by Mutual Consent. It can be done during those six months when the petition is pending in the court.

The court can grant a divorce decree and dissolve the marriage if it comes to know that the unilateral withdrawal of consent is not genuine. So the court will ignore the withdrawal of consent and will grant the decree.

The court decided, in the case Rajat Gupta v. Rupali Gupta (2018), that the parties’ decision to settle their differences and choose for divorce by mutual consent constitutes a binding agreement and a type of undertaking. If a party now unilaterally withdraws their consent, they will be in breach of their court-ordered commitment, committing civil contempt of court by deliberately defying a court order. If consent must be revoked unilaterally, it must be done on just and reasonable grounds, with no detriment to the other party.

Therefore, consent can be unilaterally withdrawn only in exceptional cases on reasonable grounds.

Procedure for obtaining a divorce by mutual consent

Step 1 – file a joint petition

Both parties must sign and file a divorce petition in the form of an affidavit with a family court in their area. The petition can be submitted within the local borders of the ordinary civil jurisdiction of where the marriage was solemnized or where either of the parties presently resides. Thus, the court’s jurisdiction should not be an issue when filing for divorce.

As previously stated, the parties to a marriage must have lived apart for at least one year before filing the petition.

Step 2 – the first motion

Following the filing of the petition, the parties must appear in court and make their statements. The first motion is considered to have been passed if the court is pleased and the statements are recorded, after which the parties will be allowed a 6-month waiting time before they can file the second move.

The purpose of the waiting period, as outlined in Section 13B(2) of the Act, is for the parties to reflect on and reconsider their choice. It is a period set out for them to reconcile and give their marriage a second opportunity in case they change their minds.

Regardless, the court may be persuaded that the marriage has reached a point of no return and that the waiting period will simply add to their pain. In that scenario, the court may waive the waiting period. If not waived, this time can last up to 18 months. If the parties still wish to divorce, they can submit a second motion at this time. But is to be noted that the second motion can be filed only after the waiting period of 6 months and before 18 months has elapsed.

Step 3 – the second motion

Final hearings are held at this juncture, and statements are recorded once again. After this step, if the issues of alimony and child custody (if any) are mutually agreed upon, the divorce order is issued. By now, the marriage will have come to an end, and a mutual agreement divorce will have been obtained.

Landmark judgments

Shikha Bhatia v. Gaurav Bhatia & Ors. (2010)

In this case, during the pendency of a petition for anticipatory bail in an FIR filed against him and his parents, the respondent-husband agreed to pay a quantified amount to the petitioner wife in full and final satisfaction of all her claims in exchange for her signing the first motion for grant of divorce by mutual consent, and then the petition was dismissed. The wife also agreed not to raise any objections to the FIR being quashed. She filed a contempt action against the spouse after he failed to follow through on his promise to make the payments. The Delhi High Court held that because the husband had taken advantage of the settlement agreement reached with the wife, he could not reverse it to her harm. As a result, the husband was found guilty of contempt for intentionally and deliberately disregarding the settlement recorded in court on his representation.

Avneesh Sood v. Tithi Sood (2012)

In this case, after a decade of marriage, the parties experienced disagreements and signed a Memorandum of Understanding (MoU) committing, among other things, to seek divorce by mutual consent. According to the provisions of the agreement, the husband promised to pay the wife a specific amount in instalments. Following the signing of the Memorandum of Understanding, the parties filed a joint petition for mutual consent dissolution of marriage under Section 13-B(1) of the Act, which included the terms and conditions of the settlement, which were duly recognized by the court during the first motion procedures.

When the wife refused to cooperate with the husband in moving the second motion petition under Section 13B(2) of the Act, he filed a contempt petition against her, alleging that she had reneged on the undertaking she made to the court when filing the petition for mutual divorce under Section 13B(1) of the Act before the Family Court. The wife was found guilty of contempt of court for breaching the undertaking given to the learned counsel in the first motion divorce proceedings under Section 13B(1) of the Act, and the Court issued a notice to show cause why she should be punished for contempt of court, especially since she had benefited from the Memorandum of Understanding.

Rajiv Chhikara v. Sandhya Mathu (2016)

In this case, the Delhi High Court’s division bench ruled that reneging on a settlement constituted a kind of mental cruelty. The parties had been living separately since 2009, according to the court, their relationship was beyond repair. In such a case, if one spouse insists on maintaining the marriage, it is equivalent to subjecting the other to a severe mental cruelty condition.

Smruti Pahariya v. Sanjay Pahariya (2009)

In this case, the Supreme Court declared that the court can only issue a divorce decision under Section 13B of the Hindu Marriage Act if the parties continue to agree. If the divorce petition is not formally withdrawn and is kept pending, the court is required by law to hear the parties determine their consent on the date the decree is granted. The court must be convinced that there is mutual consent between the parties on some physical elements that demonstrate such consent.

Conclusion

Divorce by mutual consent allows for the peaceful resolution of disputes between parties while also saving time and money. Divorce is a severe issue that should only be utilized as the last choice; but, nowadays, many do not hesitate to get divorced. It disintegrates families, and the child of a divorcing spouse faces significant trauma as a result of growing up with separated parents.

Divorces have always been shown as a negative step in society, it is a taboo. But in this changing world, you could put an end to marriage if it’s not done right by you. Courts try their best for the marriage to not end, they try new things if it can mend the marriage, giving divorce is always a last resort.

Mutual consent divorce is one of the best kinds of divorce, couples can resolve their disputes with a peace note and move on with their lives. It does not degrade your relationship, or you don’t have to mouth each other. A couple following the process prescribed under the law can put an end to the marriage, settle things and live peacefully.

References

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