divorce
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This article has been written by Sushant Biswakarma from Symbiosis Law School, NOIDA. This article tells the step by step procedure for divorce by mutual consent under Hindu Law, along with its essentials and discusses the directory nature of the statutorily prescribed waiting period.

Introduction

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.

Dissolution of marriage under the Hindu Marriage Act

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)

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 remain in existence. The parties still remain husband and wife, even though they might live separately and do not have a sexual relationship. One cannot remarry in case of Judicial Separation.

Even though the parties remain spouses, they must not have sexual intercourse without the other party’s consent during judicial separation. 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 for up to 2 years and/or fine.

Section 10 of the act mentions that the grounds of judicial separation are the same as the grounds for divorce provided under Section 13(1) of the Act. 

Divorce – (Section 13)

In the case of divorce, the marriage is brought to a permanent end. All marital obligations are lifted off the parties and they 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, the court may grant the decree if satisfied.

Grounds for Judicial Separation and Divorce – Section 13(1)

  • Adultery: has sexual intercourse with any other person than their spouse.
  • Cruelty: treats their spouse with cruel behaviour.
  • Desertion: has left their spouse for a period of at least two years without any reasonable grounds.
  • Conversion: has converted to some other religion.
  • Insanity: suffers from any mental disorder. 
  • Leprosy: suffers from an incurable and contagious disease.
  • Renounced the world: has renounced the world to unite with God or for the search of the truth.
  • Has not been heard alive for seven years.

Divorce by mutual consent – (Section 13B)

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 can not live with one another they can seek divorce by mutual consent under Section 13B of the Hindu Marriage Act.

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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?

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?

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.

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.

References


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