This article has been written by Sushant Biswakarma from Symbiosis Law School, NOIDA; and Diksha Paliwal, a student of LLM (Constitutional Law). It talks about the concept of divorce by mutual consent under the Hindu Marriage Act, 1955, its essentials and procedure for the same. Difference between judicial separation and divorce has also been discussed, followed by judicial pronouncements and some FAQs.

It has been published by Rachit Garg.

Table of Contents

Introduction 

Marriage forms the basis of the most important institution of a civilised society, i.e., the family.  Family is considered to be an indivisible part of a civilised society, be it the evolution of human culture or preserving morality. A happy and stable family forms the foundation of a strong and sound community. The importance of the institution of family to form a civilised society is non-debatable. However, the foundation of family is formed on the institution of sacramental value, namely, marriage.

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The institution of marriage is considered to be of sacramental value and is thus treated as an inseparable bond. However, with the changing social conditions and the evolution of society, this idea of the inseparable bond between husband and wife has also evolved.

Marriage has always been considered as a holy relationship in every religion around the world. It is said that relationships are made in heaven and couples just meet each other on earth. It is not just a relationship between two people, but a relationship between two different families. Two different people from two different families come together to get married and start a new family. Anyhow, marriage is still an agreement and like all other forms of agreements, it can also be brought to an end.

There are multiple legislations in India regarding marriage such as The Indian Christian Marriage Act, 1872; Muslim Marriage Act, Special Marriage Act, and Hindu Marriage Act. In this article, we are going to deal only with the Hindu Marriage Act, specifically how to end a marriage by mutual consent as per the Act.

Divorce under old Hindu Law 

In the early ages, the concept of divorce was alien to the laws of Dharamshastra, since marriage was a holy union of two people, and hence, the bond was unbreakable. Marriage was contemplated as being an indissoluble union of the wife and husband. The people back then were of the opinion that the marital tie between a couple could not be severed under any circumstances. Manu was expressly against the concept of marriage and hence stated that the union of husband and wife should be continued till death. Not only this, it even stated that the duty of a wife does not end after the death of her husband, and thus, she is not allowed to have a second husband. 

From the above discussion, it is pretty clear that the old Hindu law did not follow divorce, however, some people say that the concept of divorce did find a place in the customs of certain communities, for example, shudras. In the 1940s, there existed certain laws which recognised the concept of divorce, like the Bombay Hindu Divorce Act, 1947, and the Madras Hindu Bigamy Prevention and Divorce Act , 1949. All these legislations were repealed after the enactment of Hindu Marriage Act, 1955.

Dissolution of marriage under the Hindu Marriage Act, 1955

The concept of divorce in the early ages was non-existent as the marriage between two people was considered to be an inseparable bond. However, with the changing times, the concept of divorce was given due consideration by the legislature in order to cope with the changing scenarios of the society. Divorce is basically the termination of marriage by legal means. By way of divorce, the spouses seek separation from each other, when they are not in a situation to live together as a married couple. The legislations brought upon by the Indian Legislature have come out as some of the most important radical changes in the then existing laws pertaining to marriage and divorce. 

If marriage solemnized under the Hindu Marriage Act is valid, and there is a reason to end it – it can be ended by way of either Judicial Separation under Section 10 or Divorce under Section 13 and Section 13B. Section 13A provides alternate reliefs in divorce proceedings.

Judicial Separation – (Section 10 of Hindu Marriage Act, 1955)

In the earlier period, i.e., in Shastric Hindu Law, the notion of judicial separation was not known, or at least not practised. However, the courts established by the British, up to a certain extent, permitted providing the wife with maintenance along with a separate residence from her husband. The wife could seek separate residence and maintenance if the husband was suffering from some loathsome disease, or if the husband treated her with cruelty, or if the husband had a concubine living with him in the house, or some other justifiable reason as the courts at that time deemed fit.  The provision of judicial separation as corroborated under Section 10 of the Hindu Marriage Act, 1955, is similar to that provided under the earlier repealed Hindu Married Women’s Right to Separate Maintenance and Residence Act, 1946. This Act gave a statutory right to married Hindu women to claim maintenance and separation from their husbands. 

Judicial separation is an alternative to divorce; however, it does not put the marriage to an end. The parties do not cohabit, but other obligations of marriage still exist. The parties still remain husband and wife, even though they might live separately and do not have a sexual relationship. One cannot remarry in the case of judicial separation. This Section even applies to Hindu marriages that have been solemnised before the commencement of this Act. To put it simply, the remedy of judicial separation puts an end to the conjugal duties of both spouses and allows them to live separately.

Even though the parties remain spouses, sexual intercourse must be with consent, even in the case of marriage. Section 376B of the IPC states that if a man tries to have sexual intercourse with his wife without her consent during judicial separation, he may face a prison sentence of up to 2 years and/or fine.

Section 10 of the Act mentions that the grounds for judicial separation are the same as the grounds for divorce provided under Section 13(1) of the Act. No separate grounds are enunciated in the HMA, 1955, and hence the Act provides that Section 10 of the Act has to be read with Section 13 and Section 13-A, which provide for grounds of divorce and the court’s power to grant judicial separation where divorce is prayed by the parties. Also, as per sub-section (2) of Section 10, the court can rescind the decree of judicial separation if it is satisfied to do so, on the petition of either of the parties. 

After the amendment made in 1976, by which the grounds of divorce and judicial separation were made identical, it has been observed that the petitions for judicial separation have become comparatively less frequent. The reason being that no couple would prefer judicial separation if they could rather opt for divorce on the same grounds. Since divorce will release the couple from the marital tie entirely, judicial separation won’t.

With the grounds of judicial separation and divorce being similar, the question that arises is, whether judicial separation can be granted by the court at its discretion where the petitioner has instead sought divorce. The Delhi High Court dealt with this question in the case of Vinay Khurana v. Shweta Khurana (2022). The Court, while dealing with the matter, stated that it is not at the court’s discretion what relief is to be granted. The court cannot substitute the relief prayed for by the petitioner. It further emphasised the fact that the concepts of judicial separation and divorce are entirely different. In the present case, the family court, while adjudicating the matter, granted the decree of judicial separation when a decree of divorce was sought by the petitioner. The High Court further stated that the family court has not been conferred with the power to substitute the reliefs prayed.

Divorce – (Section 13 of Hindu Marriage Act, 1955)

Etymologically, the term “divorce” which is derived from the Latin word “dovortium” is a mixture of two words, namely, “dis” which means “apart” and “vertere” which means “to turn.” The term “divorce” denotes the separation of the parties to the marriage, i.e., husband and wife. It is the dissolution of the marital relationship. By breaking the marital ties, the husband and wife are released from the responsibilities and obligations that they would otherwise be bound to perform together.

In the case of divorce, the marriage is brought to a permanent end. All marital obligations are lifted, and the parties are free to remarry. The parties no longer remain husband and wife.

The parties are free to choose whether they want a decree of judicial separation or divorce, and the court may grant the decree if satisfied.

The Hindu Marriage Act, 1955, was the first legislation that granted a divorce under Hindu law, as the same concept found no place in Hindu Shastric Law. Section 13 of the Hindu Marriage Act, 1955, provides for the circumstances in which either of the spouses can opt for divorce. It is important to note that, as enumerated in Section 14, parties cannot file a petition for divorce within one year of their marriage. However, Section 14(1) states that parties can seek divorce within one year if the petitioner faces exceptional hardships or otherwise if it becomes a case of exceptional depravity on the part of the respondent. The court, under the same sub-section, also has the power to dismiss such a petition of divorce presented before a period of one year if it finds out that the petition was filed under any misrepresentation or if there is any concealment of facts by the petitioner. Presently, the term “exceptional depravity” is not defined under any Indian Act, however, the same in layman’s language can be termed as a situation when a person is deprived of something that he or she extremely desires, or in a normal situation, cannot be expected to live without or suffer. 

Clause (2) of the Section mandates that the court while dismissing a petition due to the non-completion of a period of one year, shall try all possible efforts of reconciliation when a similar petition is filed after the expiry of one year, looking into the interests of children, if any, or if there exists any probability of reconciliation in marriage. 

The concept of divorce as enshrined under the HMA, 1955, is based on the “fault theory,” which means that the Act provides the grant of divorce to the parties, based on the faults or sins that one of the parties has committed. These fault grounds on which a party can seek a decree of divorce or judicial separation are mentioned in Section 13 of the Act. 

  • Section 13(1) of the Act provides that either of the parties can seek divorce by way of filing a petition on the following grounds, namely, sexual intercourse with any person other than spouse, cruelty, desertation, conversion of religion, unsound mind or mental disorder, either of the party is suffering from leprosy or venereal disease in a communicable form, if one of the spouse has renounced the world by entering into any religious order, or if any one of the spouse has not been heard alive for a period of 7 years or more. The petitioner can seek a decree of divorce on any of the above mentioned grounds. The Section further provides for the explanation of terms “mental disorder”, “psychopathic disorder” and “desertation”.
  • Section 13(1A) of the Act further talks about two additional grounds, which were inserted after an amendment made in 1976. These two additional grounds are; 
  1. If the parties have not cohabited for two years or more after the passing of decree of judicial separation, or 
  2. If there has been no restitution of conjugal rights for a period of one year or more after the passing of decree for the restitution of conjugal rights. 
  • Clause (2) of the Section mentions additional grounds on which the wife can seek a decree of divorce. The additional grounds are: 
  1. Section 13(2)(i))– when the husband already had a wife at the time of his marriage; or 
  2. Section 13(2)(ii)– A wife can seek a decree of judicial separation or divorce if the husband is found guilty of rape, sodomy, or bestiality; or 
  3. Section 13(2)(iv)– The third additional ground provided to the wife is that if she was married before the age of puberty (15 years), she can apply for divorce or judicial separation after attaining majority. 

In the case of Dharmendra Kumar v. Usha Kuma (1977), the Apex Court, while dealing with a petition for divorce on the grounds mentioned in Section 13(1A)(ii) of the Act, granted divorce to the wife. In this case, the wife applied for the grant of a divorce decree after around two years of a decree of restitution of conjugal rights in her favour. In reply to the petition, the husband contended that the wife refused to entertain, receive, or reply to any of his letters wherein a request was made by him to live with her. The Court stated that even if the above allegations are true, this does not disentitle the wife to ask for a divorce decree. 

In the case of Sirajmohmedkhan Janmohamadkhan v. Hafizunnisa Yasin Khan (1981), the wife (respondent in present case) filed an application for grant of maintenance under Section 125 of the Code of Criminal Procedure, 1973, stating that her husband is unable to fulfil his obligations under a marriage, and is guilty of wilful neglect. It was contended by the wife that her husband was incapable of carrying on a physical relationship, and that even her husband accepted the said fact. She also said that her husband treated her cruelly, and that she was driven out of her husband’s house. The learned lower court, stating that mere impotency cannot be a ground for maintenance, dismissed the petition of the wife. Being aggrieved by the decision, the wife filed an appeal against the judgement before the High Court of Gujarat, wherein her appeal was allowed. Thereafter, the appellant-husband filed an appeal seeking special leave before the Hon’ble Supreme Court. The Apex Court after looking into the facts and circumstances of the case, held that if the husband is impotent and is not able to discharge his marital obligations, and the same has been proved to the Court, then this would amount to both mental and legal cruelty, as contemplated under Section 13. The Court further stated that this would be a just ground to seek maintenance and for the wife’s refusal to live with her husband. 

In the case of Durga Prasanna Tripathy v. Arundhati Tripathy (2005), the wife deserted the husband after seven months of marriage, and both of them had been living separately for the past 14 years. Since the wife was not ready to lead a conjugal life with her husband and all the efforts of reconciliation went in vain, the Court granted the decree of divorce under Section 13(1) of the Hindu Marriage Act, 1955, on the ground of cruelty and desertion.

Grounds for judicial separation and divorce – Section 13(1)

Adultery: If the spouse has sexual intercourse with any person other than their spouse, then the other party can seek divorce or judicial separation by way of filing a petition before the concerned family court. Adultery as a ground for judicial separation or divorce occurs when either of the spouse engages in sexual intercourse with another person, in such a condition the other party can file a petition and seek divorce or judicial separation, as the case may be. It is important to note that for a party to establish adultery before the court, he or she has to rely mainly on the ancillary facts, for instance;

  1. Circumstantial evidence; or
  2. When no evidence of contact between the parties has happened and the wife is pregnant; or
  3. A clear confession by the other party who was involved in extramarital intercourse, or a confession of the same in some other parallel proceedings; or
  4. Any letters or other proof of a conversation between the parties involved in the affair which suggest any sexual relationship between the two.

In the case of Mrs. Pragati Varghese v. Cyril George Varghese (1997), it was held that in order to prove adultery, circumstantial evidence can be used by the plaintiff, however, it shall be such that it entirely wipes out the possibility of innocence of the respondent. It is to be noted that illicit intercourse that happened before the marriage cannot be a ground for seeking a judicial decree. 

Wherein a person has married within the prohibited degrees of relationship as provided under  Hindu law, and after some time when he realises that the marriage is invalid as per law and hence remarries, intercourse with the previous wife would amount to adultery. The wife in such a case can obtain a decree of judicial separation or divorce.  

Cruelty: In a simple language, cruelty connotes a situation when the spouse treats the other spouse with cruel behaviour. Section 13(1)(i)(ia) of the Hindu Marriage Act deals with cruelty. The Act does not provide for any specific definition of the term “cruelty”, however, after looking into various judicial pronouncements, it can be said to include, physical violence, mental agony, affairs, toxic behaviour, etc. There is no specific scope or ambit of the definition, it is on the courts to determine, after looking into the facts and circumstances of the case, whether a particular conduct amounts to cruelty or not. The term is not restricted to the english doctrine of danger, nor limited to any particular definition or scope under the statutory limits.

In the case of A. Jayachandra v. Aneel Kaur (2005), the Supreme Court held that the term “cruelty”, as a ground of divorce and judicial separation, is used in relation to human conduct and/or human behaviour. Also, the Court stated that the conduct that has been complained about should be grave and weighty so as to lead to the conclusion that the spouse can no longer reside together with the other spouse. In the present case, the respondent wife used to ask her husband to do certain things, casting doubt on her husband’s reputation, character, and fidelity. The Court, looking into the facts and circumstances, held that what the wife used to ask her husband amounts to cruelty, as against the contentions of the respondent’s wife, who stated that those things were just simple advice. It was further stated that, though irreversible breakdown of marriage is not a specified ground of divorce under the HMA, 1955, under certain circumstances to shorten the agony of the parties and in the interest of justice, a court can grant the decree of divorce. 

Desertion: Section 13(1)(i)(ib) of the HMA, 1955 deals with the provision of desertion, meaning that the spouse has left the other spouse for a period of at least two years without any reasonable grounds. The term “desertion” basically means the act of leaving or quitting without an intention to return back to live with the spouse. Put simply, it is an act of forsaking or abandoning. It is important to note that to seek divorce on the ground of desertion it is essential that the parties have not cohabited and that the party has wilfully left the house. In various instances, it happens that there may be separation without desertion, and desertion without separation, hence, mere severance of a relationship is not a sufficient and a valid ground for divorce. It is the wilful abandonment of one spouse by the other with any relevant or reasonable cause. In such a case, the consent of the affected party is not there. It is the total denial of the obligations of marriage.

In the case of Usharani Pradhan v. Brajkishore Pradhan (2005), the Orissa High Court held that the conduct of the respondent-wife of leaving her husband and children for such a prolonged time (7 years) to pursue her so-called ambition amounts to desertion. While upholding the divorce decree granted by the learned Family Court’s judge, the Court, while commenting on the respondent wife’s act, stated that “this case depicts the sordid episode of the life of a woman who spoiled her homely environment and family relationships running after the politics and politicians forgetting her solemn duties and responsibilities of a matrimonial life and neglecting her husband and children.”

In the case of Santosh Singh v. Sumita Singh (2022), the Chhattisgarh High Court granted divorce to the petitioner husband in a case where the wife did not return to her matrimonial house while waiting for shubh muhurat for almost 10 years. The Court stated that this act by the wife amounts to desertion under Section 13(1)(i)(ib) of the HMA, 1955. 

Conversion: If one of the spouses has converted to some other religion. By virtue of Section 13(1)(ii) of the Hindu Marriage Act, 1955, if any of the spouse ceases to be a hindu by conversion, then the other spouse can ask for the decree of divorce or judicial separation. Prior to the Amendment Act of 1976, conversion was only the ground for seeking divorce, but after the amendment it is a ground for judicial separation too. However, the petitioner himself or herself cannot seek a decree of judicial separation or divorce on the ground of his or her conversion. 

In the case of Madanam Seetha Ramulu v. Madanam Vimala (2014), the wife was Hindu by birth, however, later on, she got herself converted to Christianity after the solemnization of her marriage. The husband filed a petition seeking divorce on the grounds of his wife’s conversion to another religion. The Andhra Pradesh High Court held that the husband is entitled to get divorce on the ground of his wife’s conversion to another religion. This Section does not cover marriages that are solemnised under special statutes, and thus they cannot be dissolved under this section. 

Insanity: An incurable unsoundness of mind or mental disorder in either of the parties to the marriage is a valid ground for seeking divorce or judicial separation under Section 13(1)(iii) the Hindu Marriage Act suffers from any mental disorder. Incurable unsoundness of either of the spouses is a reasonable ground for seeking a decree of divorce or judicial separation. After the Amendment made in the year 1976, it is no longer essential to establish the unsoundness of the other party for a period of not less than two years immediately before filing of the petition of divorce or judicial separation. The petitioner is required to establish that the respondent has been suffering from such a kind of mental disorder or unsoundness of mind continuously or intermittently that it is not possible for the petitioner to live with him or her. The meaning and scope of the terms “mental disorder” and “psychopathic disorder” have been provided in the explanation clause of Section 13.

In the case of Utpal Hazari v. Maya Hazari (2018), the Jharkhand High Court held that marriage cannot be dissolved on the ground of mental disorder, which was caused by the sudden death of a sixteen-year-old son of the wife. In the present case, the wife lost her 16-year-old son, which traumatised and broke her, resulting in various mental disorders and unusual behaviour. The High Court stated that the learned lower court erred in looking into the facts and, especially, the circumstances of the case and that this is not the case of incurable unsoundness or insanity. 

Leprosy: It is a kind of bacterial infection, which is a contagious disease. Prior to the amendment made in the year 2019, Section 13(1)(iv) of the Hindu Marriage Act provided leprosy as a ground of divorce and judicial separation. The Personal Laws (Amendment) Act, 2019, removed the disease of leprosy, as a ground for seeking decree of divorce. Before the passing of this amendment, the 20th Law Commission of India in its 256th Report titled as “Eliminating Discrimination Against Persons Affected by Leprosy”, recommended the removal of leprosy as a ground of divorce. The Law Commission Report stated that, since there have been a great advancement in the medical facilities, and medicinal treatment, such diseases have now up to a large extent have become curable. Thus, to still have such provisions in the various personal laws will be discriminatory to the person suffering from the disease. 

The Apex Court in the case Pankaj Sinha v. Union of India (2018), issued similar guidelines. In the case of Pankaj Sinha, a writ petition was filed under Article 32 of the Indian Constitution, in which it was prayed that the Union of India and other respondents be issued directions to conduct regular national surveys in determining the cases of leprosy, and to bring the reports in the public domain. It was also sought by the petitioner that regular awareness camps be conducted to raise awareness and curb the fear of such diseases. In light of the relief sought by the petitioners, the Apex Court released certain guidelines to formulate and adopt measures to eradicate leprosy. 

To get a decree of judicial separation or divorce (when this ground is available), the petitioner has to establish that the respondent has been suffering from leprosy for a period that is not less than a year immediately before the filing of the petition. However, after the amendment made in 1976 the statutory period of one has been deleted, and the term “incurable” has been inserted. The petitioner is now required to establish that the other spouse is suffering from a virulent and incurable form of leprosy. 

Venereal disease: The petitioner can file a petition seeking a decree of divorce or judicial separation on the ground that the other spouse is suffering from venereal disease (a disease that can be transmitted through sexual intercourse) in a communicable form. Prior to the amendment, the suffering of the spouse from a venereal disease for at least three years was an essential requirement. In the case of Prasanna Krishanji Musale v. Mrs. Neelam Prasanna Musale (2022), the Bombay High Court while dismissing the husband’s appeal against the judgement of the trial court for grant of divorce under Section 13(1)(ia), 13(1)(ib), and 13(v) of the HMA, 1955, wherein he falsely accused his wife of having HIV Positive, and had refused to cohabit with her.

Renunciation of the world: Section 13(1)(vi) of the HMA, 1955, lays down that if any of the party to the marriage has renounced the world to unite with God or for the search of the truth, the other spouse can seek divorce or judicial separation. Renunciation from the world was the ground available only for getting a decree of divorce and not judicial separation before the amendment done in the year 1976. In the case of Shital Das v. Sitaram (1954), the Supreme Court held that, the renunciation announced by the spouse infers to a religious order, which works or implies civil death, and this is the reason why the other party has been provided with the right to seek decree of divorce or judicial separation. It is important that the petitioner establishes the fact that the other spouse has joined some religious order contrary to the concept of marriage. A mere declaration that the other spouse has renounced the world does not prove to be a sufficient ground.

Presumptive death: Under Section 13(1)(vii) of the HMA, 1955, if one party to the marriage has not been heard alive for seven years, then the other spouse can seek divorce or judicial separation on the ground of presumptive death. Presumption of death of the other spouse, if the person has not heard of being alive for a period of seven years or more, is a ground available to seek divorce or judicial separation. In order to prove this ground, it is required that the petitioner establishes that no person who would have naturally heard from the respondent knows about him or her being alive. In the case of Nirmoo v. Nikka Ram (1968), the Delhi High Court held that, if the spouse presumes the death of the other spouse, and without getting a divorce in such a case, remarries to the other person, then, the person that has returned after the span of seven years or more can contest the validity of the second marriage.

Divorce by mutual consent – (Section 13B of Hindu Marriage Act, 1955)

In a case where none of the aforementioned grounds is available but the parties decide they do not want to remain married to each other or cannot live with one another, they can seek divorce by mutual consent under Section 13B of the Hindu Marriage Act.

The Hindu Marriage Act, 1955 enshrines the right to divorce by way of mutual consent under Section 13B. The spouses can jointly file a petition seeking divorce under Section 13B before the family court, which possesses the jurisdiction to pass such a decree of divorce under Section 13B. The Section expressly mentions the conditions under which the spouses can file a petition for the grant of divorce by mutual consent.

In order to seek divorce on the grounds of mutual consent, the parties must have been living separately for a period of at least one year. The term living separately connotes that the parties must not live together as husband and wife, however, it does not say that the parties cannot live under the same roof if they are filing a petition for divorce by mutual consent.  The important factor that is to be addressed is that there is no possibility of them living together as husband and wife. Another essential ingredient is that the parties are not able to live together and have mutually agreed that their marriage has no chance of reconciliation and that in no way can the dispute between the parties be resolved.

The judiciary has conflicting opinions regarding the waiting period that is prescribed in the provision of Section 13B. There have been clashes while considering the period of waiting as directory or mandatory. In the case of Gandhi Venkata Chitti Abbai v. Unknown (1988), the Allahabad High Court held that the waiting period was mandatory. However, in the case of Dinesh Kumar Shukla v. Neeta (2005), the Madhya Pradesh High Court held that the period prescribed under Section 13B is directory in nature and can be brought down below 6 months if the circumstances of the case demand so. Putting an end to this question, the Apex Court, as discussed in the later part of the article, has held that the waiting period under Section 13 B can be waived if the circumstances demand it. 

The parties at the time of filing the petition for divorce must mutually agree on the same, however, the consent can be withdrawn unilaterally if one of the spouses in the waiting period is of the opinion that he or she does not want a divorce. It is pertinent to note that the decree for divorce by mutual consent cannot be passed ex parte, i.e., both parties must be present at the time of the passing of the final decree.

Essentials of divorce by mutual consent

Parties should be living separately

Section 13(B) of the Act prescribes that in order to mutually dissolve a marriage, the spouses should be living separately for a period of at least 1 year before filing the petition.

This period of one year where the parties have lived separately must be immediately before the filing of the petition. “Living Separately” in the context of Section 13B does not necessarily mean physically living in different places. The parties could be living in the same house, sharing the same roof but there can still be a distance between the two.

If that is the case then they are not considered to be living as husband and wife, which qualifies as living separately.

The same was held by the Hon’ble Supreme Court in the case of Sureshta Devi v. Om Prakash. Wherein it was made clear that living separately does not necessarily mean living in different places. The parties can be living together but not as spouses.

Parties have not been able to live together

It is said that relationships are made in heaven, however sometimes the holy relationships do not work for long on Earth. These days divorce is taken very lightly and people go for it as a first resort whereas the intention behind the law of divorce was to make it a last resort. Many times, in a marriage it so happens that the spouses can’t stand each other and can no longer live together happily. That is when they opt for divorce by mutual consent.

Sadly enough, it often happens that the parties are not able to live together even after trying mediation and reconciliation and putting multiple efforts, before filing a divorce petition by mutual consent.

In Pradeep Pant & anr v. Govt of NCT Delhi, the parties were married and had a daughter from their wedlock. However, due to temperamental differences between them, they were not able to live together and decided to live separately. Despite putting their best efforts they were unable to reconcile their marriage and could not see themselves living together as husband and wife ever again. A divorce petition was jointly filed and issues such as maintenance and custody of their child were decided and agreed upon by both.

The wife would get custody of their daughter and the husband would reserve visitation rights, it was mutually agreed upon by both of them. Both parties gave their free consent without any undue influence. The court observed that there was no scope of reconciliation and granted a decree of divorce.

After filing a petition for divorce by mutual consent, the parties are given a waiting period of  6 months, also known as a cooling period and it may extend up to 18 months. During this time the parties must introspect and think about their decision.

If the parties are still not able to live together after the cooling period, then the divorce petition shall be passed by the district judge.

They have mutually agreed that marriage should be resolved

In some situations – the parties may choose to give their marriage another chance and mutually resolve their marriage. During the waiting period, the parties may sometimes be able to reconcile and make their relationship work.

After the first motion has been passed, the parties have a total of 18 months to file for second motion and if they fail to do so within those 18 months, both parties are deemed to have withdrawn their consent mutually.

Procedure for getting a decree of divorce by mutual consent

Step 1: Jointly filing a petition

A divorce petition in the form of an affidavit is to be signed by both parties and filed before a family court in their region.

Jurisdiction of the court should not be a major issue in filing for divorce as the petition can be filed within the local limits of the ordinary civil jurisdiction of where the marriage was solemnized or where either of the parties currently resides.

As mentioned earlier, the parties to a marriage must be living separately for at least one year before filing the petition.

Step 2: First motion

After filing the petition the parties shall appear before the court and give their statements. If the court is satisfied and the statements are recorded then the first motion is said to have been passed, following which a waiting period of 6 months will be given to the parties before they are able to file the second motion.

This waiting period as statutorily prescribed under Section 13B(2) of the Act is for the parties to introspect and think about their decision. It is a time given for them to reconcile and give their marriage another chance, just in case they decide to change their mind.

Anyhow, sometimes the court may be convinced that the marriage has reached the point of no return and the waiting period will only expand their misery. In that case, this period can be waived off by the court. This period if not waived off can extend up to 18 months. If the parties still want to get divorced they may now file for second motion. The second motion can be filed only after the waiting period of 6 months and before 18 months has elapsed.

Step 3: Second motion

This is when final hearings take place and statements are recorded again. If the issues of alimony and child custody (if any) are mutually agreed upon the decree of divorce is passed after this step. The marriage has finally ended by now and divorce by mutual consent has been granted.

Is the six month waiting period mandatory for getting a divorce by mutual consent

Getting a divorce is a very serious matter, it can destroy and separate families. But, on the other hand, the parties get to exercise their right to choose and pursue their happiness as there is no point to continue being in a matrimonial relationship if the spouses are not happy. For couples who go for filing divorce by mutual consent are given time to try and make their marriage work. They are advised to go for mediation and reconciliation to sort their issues out.

However, many times these efforts don’t work and people actually go through with the divorce.

While filing for divorce by mutual consent the parties have already lived separately for a period of over one year per the statutory requirement. So, there is very little to no chance that they can make the marriage work again. 

In the case of Amardeep Singh v. Harveen Kaur, it was observed that the couple had internal disputes and their married life was not the best one. The disputes escalated really bad and many civil and criminal proceedings were followed.

They mutually decided to resolve all the disputes and file for divorce by mutual consent. The custody of their children would be with the husband, and permanent alimony was paid to the wife.

After all these issues were mutually sorted by the parties they just wanted a quick divorce and sought to waive off the waiting period. The parties could no longer be with each other and the waiting period would only prolong their agony.

Keeping this in view, Hon’ble Supreme Court laid down the waiting period of six months can be waived off if the court is satisfied that the spouses have lived separately for more than the statutorily prescribed time of at least one year and have settled the issues of alimony and custody of children(if any).

Hon’ble Supreme Court also observed that the waiting period will do nothing but merely prolong the misery and sufferings of the parties unable to live together anymore. 

In another case of K. Omprakash v. K. Nalini, the parties were not happy with their marriage anymore and were allegedly having extramarital relationships. It was the contention of the petitioner that they were living apart without ever visiting each other for more than a year and so, there was no scope of reconciliation between them.

They blamed each other for their suffering and unhappiness. Both alleged each other to be involved in a series of illicit relationships but denied ever being involved in such relationships themselves.

There was no other option left but only to file for divorce by mutual consent. The marriage had suffered irretrievable damage and had reached a point of no return.

Both parties prayed for an instant divorce and a waiver of the waiting period. Observing that the parties had lived separately for long enough and there was no scope of getting the marriage to work again. 

The High Court of Andhra Pradesh held that Section 13B(2) of the Hindu Marriage Act should be read not as a statutory mandate, but only as a directory.

Hence, the waiting period which was once mandatory in nature now remains discretionary.

Whether consent can be unilaterally withdrawn for divorce by mutual consent

After the first motion, if the parties are provided with the waiting period they may sometimes decide to change their mind. Not all cases of divorce are irreparable and some may still have some scope of reconciliation and the parties may choose to withdraw their consent and give their marriage a second chance. 

The waiting period proves to be very useful for some cases as the parties get to go for mediation which may change their mind. The consent of the parties is also deemed to be withdrawn after the expiry of the waiting period of 18 months, wherein a decree of divorce shall not be granted.

The phrase “Divorce by Mutual Consent” is self-explanatory, it simply means that the consent of both parties is required in order for the court to grant the decree of divorce. In Sureshta Devi v. Om Prakash, the wife’s consent was fraudulently obtained by the husband for filing a divorce. The wife was unwilling to give her consent for divorce and therefore she did unilaterally revoked her consent. 

Upon reading the judgement of the Supreme Court we can conclude that a party can unilaterally withdraw their consent if the same has not been freely given.

After the first motion has been passed the parties will have agreed to settle on various issues such as alimony, custody of children and other marital expenses. Now, If one of the parties unilaterally withdraws their consent the other party may suffer prejudice that could be irreversible.

In Rajat Gupta v. Rupali Gupta, the court says that the agreement between the parties to settle their issues and opt for divorce by mutual consent is a binding agreement and a form of undertaking. If a party now unilaterally withdraws their consent, they would be in breach of their undertaking made before the court of law, resulting in civil contempt of court by wilfully disobeying an undertaking. If the consent has to be withdrawn unilaterally, it must be done so on a just and reasonable ground and the other party must not suffer prejudice.

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

Supreme Court on the unilateral withdrawal of consent for divorce by mutual consent

In the case of Hitesh Bhatnagar v. Deepa Bhatnagar (2011), initially a divorce petition under Section 13 B of the Hindu Marriage Act was filed before the District Court, Gurgaon. The parties in the aforesaid case got married in 1994 and were thereafter blessed with a girl in 1995. However, due to certain differences, they started living separately, and since then they have been living separately, owing to which they filed for divorce under Section 13 B in the year 2001. Later on, when the case was in second motion, the wife withdrew her consent, although the husband still insisted on the grant of a decree of divorce. Due to a withdrawal of consent by one of the parties, the petition was dismissed by the Learned Additional Districts Judge, Gurgaon. The appellant husband, aggrieved by the order of the Learned Additional Districts Judge, Gurgaon, filed an appeal before the Punjab and Haryana High Court, which was again dismissed. Thereafter, the husband moved to the Supreme Court. 

The issue before the Supreme Court was whether consent can be withdrawn by one of the parties after filing a divorce petition under Section 13 B after the expiration of more than 18 months. The second issue before the court was whether divorce under Section 13 B can be granted after the withdrawal of consent by one of the spouses. The circumstances under which divorce was to be granted in spite of the withdrawal of consent by one of the parties were also to be laid down by the Apex Court.

The Apex Court dismissed the appeal filed by the husband, stating that the courts only grant the decree of divorce when they are convinced beyond a doubt that the marriage is irreversibly broken down. However, in the present case, the wife is firm on her stand that for the future of her daughter, she is willing to put all the bitterness that exists between the parties behind her and is ready to live with her husband. In such a case, where there is still a chance that the marriage can work, granting divorce will not be appropriate. As far as the period of 18 months is considered, the court stated that this period is provided for speedy disposal of cases and is in no way a direction that specifies the period of withdrawal of consent. It was further stated by the Hon’ble Court that if the second motion in the divorce case does not begin within the period of 18 months, then the Court is not bound to pass a decree of divorce by mutual consent. It is to be noted that a second motion by both parties is not made prior to the completion of a period of 6 months from the date on which the case was filed. 

Difference between judicial separation and divorce

Judicial Separation Divorce
The provision for judicial separation is provided under Section 10 of the Hindu Marriage Act, 1955.  The provision for the grant of a decree of divorce is under Section 13 of the Hindu Marriage Act, 1955. 
In judicial separation, the relationship between the parties just stands superseded.  In the decree of divorce, the obligations of marriage no longer exist. The relationship between the spouses ceases to exist.
In cases of judicial separation, the original marital status of the parties can be restored. However, they can seek a decree of divorce if the two have not cohabited for a period of one year after the passing of the decree of judicial separation.  After the passing of the decree of divorce, the marital status of the parties cannot be restored. 
In the decree of judicial separation, parties are not entitled to remarry.  After the passing of the divorce decree, the parties can choose to remarry after the lapse of the statutory period. 

Judicial pronouncements

Anil Kumar Jain v. Maya Jain (2009)

Facts of the case

In the present case, the appellant husband filed the appeal before the Apex Court, seeking divorce under Section 13B and asking the court to invoke the extraordinary powers enunciated under Article 142 of the Constitution of India. The husband and wife, owing to the differences between them, filed a joint petition under Section 13 B seeking divorce by way of mutual consent. After the filing of the divorce petition, the learned lower court fixed a date for the further proceedings after asking the parties to wait for the six months statutory period. At the next date, the wife stated that, though she acknowledges the differences, she does not wish to dissolve the marital ties. On the other hand, the husband reiterated his stand. Based on the withdrawal of consent by the wife, the lower court dismissed the petition for divorce by mutual consent. 

Being aggrieved by the order passed by the lower court, the husband filed an appeal before the Madhya Pradesh High Court. However, since the wife was firm with her stand that she does not want dissolution of their marriage despite the differences between the two, and hence the appeal filed by the husband was dismissed by the High Court. It further stated that the husband is free to file an appeal before the Apex Court. The Court said so, because the High Court does not have any such extraordinary powers, to grant divorce in such a situation when one of the parties has withdrawn their consent. Hence, present appeal was preferred by the husband before the Hon’ble Supreme Court. 

Issue involved in the case

Whether the court under Article 142 can grant the decree of divorce under Section 13B in the present case or not?

Judgement of the Court

The Apex Court opined that normally it is necessary that the consent of both parties subsist till the end of the divorce proceedings under Section 13B, and that withdrawal of consent by one of the parties leads to the dismissal of the petition. However, the Apex Court stated that when the proceedings under such circumstances move to the Supreme Court and the Court is satisfied that a divorce decree can be granted looking into the facts and circumstances of the case, it can invoke the power under Article 142 of the Constitution and grant the decree of divorce. 

Devendar Singh Narula v. Meenakshi Nangia (2012)

Facts of the case

In the present case, the marital ties between the parties subsisted merely on a superficial basis, and both parties had been living separately since their marriage. Three months after the marriage took place, the appellant filed a petition under Section 12 of the HMA, 1955. The matter went to mediation, and the parties decided to divorce by mutual consent. The learned family court fixed the next date owing to the statutory waiting period. In the meantime, parties approached the Supreme Court to invoke Article 142. 

Issue involved in the case

Whether divorce under Section 13B can be granted before the statutory waiting period provided under the Act or not?

Judgement of the Court

The Apex Court, looking into the facts and circumstances of the case and finding that there were no marital ties between the parties  at all and that the marriage only existed in name, granted divorce to the parties before the completion of the six months statutory period. 

Shri Uttam Kumar Bose v. State of West Bengal (2023)

Facts of the case

In the present case, the petitioner is a lawfully wedded husband, however, the married life of the petitioner and the respondent wife was not peaceful. The reason contended by the petitioner is the extremely hostile, adamant, and inimical attitude of the respondent’s wife towards the petitioner and his family members. The respondent’s wife developed various medical conditions and disorders that caused her infertility, thereby making her unable to conceive. The respondent wife used to blame her husband for the diseases she suffered and used to torture him for that reason. Being agitated by this, the petitioner served legal notice to the respondent’s wife, thereby asking her to grant a divorce by mutual consent. In reply to the aforesaid legal notice, the respondent’s wife lodged a complaint against the present petitioner and his family members. The learned lower court allowed the criminal proceedings against the husband, and being aggrieved by this, the present petitioner for quashing of the impugned proceedings knocked on the doors of the Calcutta High Court. 

Issues involved in the 

  1. Whether the learned lower court erred in allowing the criminal proceedings or not. 
  2. Whether the present situation of the infertility of the wife is a valid ground for divorce?

Judgement of the Court

The Calcutta High Court held that the infertility of the wife is not a valid ground for divorce. The Court further opined that there are several ways in which the parties can become parents, and the husband has to be sensitive in such matters where the wife is already suffering mentally, as in the present case due to her being unable to conceive. The Court dismissed the revision plea filed by the husband against the quashing of criminal proceedings.

Conclusion

Divorce is a serious issue and must be used only as a last resort, however, these days people do not think twice before getting divorced. It splits families and the child of the separating couple has to go through serious trauma growing up with separated parents. 

Having said all that, countries having higher divorce rates have higher standards of women empowerment. People get to exercise their right to choose to end the marriage if they are not happy.

Divorce by mutual consent is the best way of divorce as the parties do not have to bad mouth each other in the courtroom and both parties can mutually settle on all issues and end their marriage.

The legislature has set numerous grounds for the legal termination of marriage, but the decorous way of seeking a divorce that is beneficial for both parties is by way of mutual consent.

Frequently asked questions (FAQs)

Is it possible to obtain a decree of divorce precisely on the same grounds on which a decree of judicial separation is obtained?

In the absence of a fresh matrimonial offence, the petitioner cannot apply for a decree of divorce, on the same grounds as those taken in obtaining a decree of judicial separation. It is crucial to understand that the scope and ambit of both judicial separation and divorce are qualitatively different.  

What are the two additional grounds on which a wife can seek a decree of judicial separation, other than the ones which are common grounds for both spouses?

A wife can seek a decree of judicial separation on the ground of bigamy (Section 13(2)(i)), i.e., when the husband already had a wife at the time of his marriage. Another ground provided under Hindu law is rape, sodomy, or bestiality (Section 13(2)(ii)). The third additional ground provided to the wife is that if she was married before the age of puberty (15 years), she can seek a decree of judicial separation after attaining a majority (Section 13(2)(iv)).

What documents are required for filing for divorce?

Whether the parties opt for divorce under Section 13 or Section 13 B of the Hindu Marriage Act, 1995, the petitioner while filing the petition is required to file proof of their marriage (the marriage certificate), proof of the ground that he or she has taken for seeking the decree of divorce, and respective identity proof of the parties to the marriage. Also, the divorce petition must be filed along with an affidavit. 

What is the 71st recommendation report? 

The 71st Law Commission Report (1978) pertains to the concept of irrevertible breakdown of marriage. The aforesaid report firmly recommended the addition of “irrevertible breakdown of marriage” as a separate ground for divorce. After the law commission’s report, the bill was introduced in the Lok Sabh;, however, it did notgett the majority. The bill was also introduced in the year 2013 as  the Marriage Laws (Amendment) Act, 2013, which inserted Section 13 C, HMA, 1955, and Section 28 A, Special Marriage Act, 1954, both pertaining to irrevertible breakdown of marriage as a ground for divorce. However, the bill has not been cleared by the lower house yet. 

References

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