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THEME: DIVORCE BY MUTUAL CONSENT

T OPIC : I MPACT

ON THE

S ACRAMENTAL N ATURE

OF

H INDU M ARRIAGE

Name of Author- Nakul Kumar Bajpai


University- National Law University Odisha
Year of Study- 2nd year.
Course- B.A LLB
Contact Details- 08280030782, nakulbajpai01@gmail.com.

Page 0

ABSTRACT
Divorce is the final termination of a marital union, cancelling the legal duties and
responsibilities of marriage and dissolving the bonds of matrimony between the parties. The
Hindu Marriage is sacramental in nature and propagates the union of a couple for seven
lives. However with the advancement of society and codification of the personal laws, the
Hindu Marriage has also incorporated some features within the household which are
contractual in nature.
Divorce by mutual consent is one such contractual feature which will be discussed in this
paper. It will also deal with the concept of irretrievable breakdown of marriage as a ground
for divorce which has developed and evolved through judicial decision and law commission
reports. Finally we will brush up with the latest developments proposed on the two concepts
in the Marriage Laws Amendment Bill 2010.
Research Methodology, Scope and Limitations
Analytical research has been done to find various opinions and draft recommendations of
committees on the issue. Moreover the new evolved nature of the Hindu Marriage is tested on
the traditional definition of the same to understand the level of dilution of the sacramental
nature of the Hindu Marriage. Hence this paper tries to answer. The scope of the paper
varies from analysis of various texts reports and judgement to analyse the present status of
the hindu marriage from the lens of the divorce procedures in the country. It is however
limited to legislative history only and does not go into proving how the Hindu marriage is
sacramental in the first place as the assumption has been made to that extent.
Research Question
Whether the Hindu Marriage is still a religious sacrament as
envisaged by the traditional Hindu Law or has it turned to a
special contract governed by the Hindu Marriage Act post
liberalization of procedure for obtaining divorce?

Procedure for Divorce by mutual consent under the Hindu


Marriage Act
Under the Hindu Marriage, S.13b deals with the entire procedure for the divorce by mutual
consent. It is pertinent to note that S.13b is the only place in the act where such language is
used but it is still to be referred to as procedure for such divorce because that is what it
exactly does. S.13b is entirely a procedural section and does not have any substantial
elements. The point that is being raised here is that the holy union in a Hindu marriage can be
broken off by mutual consent and following of certain procedures. Hence by this chapter the
author intends to question the very notion of referring to Hindu Marriage being sacramental
in nature having some contractual features. Rather Hindu Marriage has turned to a special
contract regulated by a special statute and having a very small core which is sacramental.
At this juncture it would be apt to reproduce the section for a better analysis of the same.
13B. Divorce by mutual consent.
(1) 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 a
marriage together, whether such marriage was solemnized before or after the
commencement of the Marriage Laws Amendment Act, 1976 , (68 of 1976 .) on the
ground that they have been living separately for a period of 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.
(2) 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 sub- section (1) 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.1

1 S.13b, (Hindu Marriage Act 1955)

The role of the court to grant a decree of divorce under this section has been made
ceremonial. Divorce by mutual consent is provided in Section 13B(1) of the Act designedly
by the legislature in its wisdom. The requirements of the said provisions are as under:2
(i)

there must be a petition jointly presented to the competent Court by both the
spouses,

(ii)

the ground for dissolution of the marriage by a decree of divorce should be clearly
and categorically shown(a) that the parties have been living separately for a period of one year or more
before the presentation of the petition,
(b) that they have not been able to live together, and
(c) that they have mutually agreed that the marriage should be dissolved.

Moreover it has been also laid down that the consent cannot be unilaterally revoked.3 The
paramount thing which is to be considered by the learned court is to see that the consent of
either party has not been taken by force, fraud or undue influence.4 However there has been
a difference of opinion regarding the continuing mutual consent before the granting of the
decree of divorce on the said ground. The question was regarding the initial consent given
and the estoppel to go back on the consent especially when the proceedings are set into
motion and conditions have already been laid as to the distribution of property or the
providing of alimony and other terms and conditions.5
Mutual Consent
It is also pertinent to note that the courts are not supposed to question the reasons for the
consent given and once the same has been achieved the court cannot decline to pass a

2(Kiritbhai Girdharbhai Patel v. Prafulaben Kiritbhai Patel 1993)


3(Sureshta Devi v. Om Prakash 1991)
4(Navdeep Kaur v. Mahinder Singh Ahluwalia 2010)
5(Ashok Hurra v. Rupa Bipin Zaveri 1997)

decree of divorce as the discretion of the court is not called for.6 Any refusal would be
contrary to law and would also frustrate the objective of the amendment.7The subjective
satisfaction of the court is not required of the reasons for not being able to live
together.8This further proves that this provision is wholly procedural and deeply affects the
sacramental nature of the marriage. Understanding that over the years the attempt has been
to save the holy union of the Married couple but in the light of strict statutory provisions
even the courts cannot aim at protecting the marriage when the parties have fulfilled all the
conditions of the section to seek divorce.
Living Separately
The requirement of living separately and not having been able to live together has aroused
sufficient debate as to the legislative intent of such a provision. It has been expressed that
living separately only connotes not living like husband and wife and has no reference to
the place of living. However when the parties are staying under the same roof and not able
to perform the marital obligations as is the ambit of the term have not been able to live
together, the onus of proving such breakdown of marital relations will lie on the parties.
This is one area where the judicial discretion is exercised but for the wrong purpose.
The viewpoint expressed earlier regarding the procedural nature of the section and
restriction of exercising judicial discretion was to save the marriage. However the courts
have usurped the discretion to interpret the section in a manner to further the cause of
divorce rather than restrict it; the courts have only made it simpler to obtain divorce rather
than protecting or making an attempt to salvage the marriage.
Cooling Period
The statutory period of 6 months provided for in the statute is the only ray of hope for
believers of the approach of salvaging the marriage rather than ending it. The minimum
waiting period of 6 months often described as the cooling period is the time period that the
parties need to observe as a married couple post filing of the first petition for divorce. The
legislature in its wisdom stipulated such a period with the intention that the parties would

6(Kiritbhai Girdharbhai Patel v. Prafulaben Kiritbhai Patel 1993)


7(Leela Mahadeo Joshi v. Mahadeo Sitaram Joshi 1991)
8(K.Sankaran v. S.Revathi 1990)

reconsider all the aspects of their decision and make an attempt to reconcile their differences
and save the institution of marriage.9
However the Supreme Courts perturbed with amount of difficulties the Husband and wife
have gone through, has dispensed with the 6 month cooling period in exercise of its powers
under Article 142 of the Constitution.10 However the court went further to say that such
power can be exercised by them only in appropriate cases.11 This further shows how the
power and discretion of the court has been used to dissolve the marriage and hence provide
with another route to effectuate the divorce. Through divorce litigation over the years there
have been ample numbers of cases which have reached the Supreme Court and new concept
has evolved through judicial activism and the power of Art. 142 unintentionally provided for
a new ground for divorce Irretrievable Breakdown of Marriage.
Irretrievable Breakdown of Marriage
The 71st Law Commission of India Report discussed irretrievable breakdown of marriage as a
ground for divorce.12 There was a recommendation by the law commission to include a sub
section under S.13(1) for divorce on the grounds of irretrievable breakdown of the marriage
Such a recommendation was made on the basis that the Divorce under Hindu Law should be
liberalized and brought in conformity with the modern trends in Europe and elsewhere. Our
affinity for the modern world has reached to an extent wherein the law commission of the
country hopes at bringing about changes in the personal law to be in conformity with the
western world.
The one set of legislation which differentiates us from the western world has if brought in
conformity with legislation in other countries, the country and the religion would lose its
identity. There is a reason why the divorce rates in India are lowest in the world and the
philosophers are still in awe of the success rate of the arranged marriage. But the courts in

9(Devinder Singh Narula v. Meenakshi Nangia 2012)


10 Ibid.
11 Ibid (..Though we are not inclined to accept the proposition that in every case of
dissolution of marriage under Section 13-B of the Act the Court has to in exercise of its
powers under Article 142 of the Constitution, we are of the opinion that in appropriate cases
invocation of such power would not be unjustified and may even prove to be necessary)
12(71st Report on The Hindu Marriage Act 1955 Irretrievable Breakdown of Marriage as a
ground for Divorce 1978)

India have moved on to bring down the Indian marriage success rates comparable to the
western world.
The language used by courts in granting divorce on the ground of irretrievable breakdown is
really disappointing. Use of Artificial flowery language and hard hitting terms without any
meaning to grant divorce has become common feature.13 The Supreme Court in the garb of
judicial activism has constantly granted divorce on the grounds of IBM yet they have said
that it is not a ground itself but the unusual step as the one taken by them can only be resorted
to clear up an insoluble mess, when the Court finds it in the interest of both the
parties.14There is no use of keeping two persons tied by the wedlock when it has become a
deadlock and they cant live peacefully.15
However this escapist attitude has decreased and the decision of the court in subsequent cases
has brought a little awakening in the minds of the author as to the existence of a serious
problem that would exist if the marriage would be allowed to continue. The Supreme Court
has truly accepted that it is important to understand that public interest is in the continuance
of marriage as faras possible but when the same has been wrecked beyond salvage
recognition of the fact and granting divorce would be in public interest. Since there is no
acceptable way in which a spouse can be compelled to resume life with the consort, nothing
is gained by trying to keep the parties tied for ever to a marriage that in fact has ceased to
exist.16
Further the Supreme Court has also accepted that the power to grant divorce on Irretrievable
break down of marriage is available on to the Supreme Court in exercise of the powers to do
complete justice under Art 142 of the Constitution of India. This ground cannot be used to

13(Sanghamitra Ghosh v. Kajal Kumar Ghosh n.d.)(In fact there has been total
disappearance of emotional substratum in the marriage. The matrimonial bond between the
parties is beyond repair. A marriage between the parties is only in name. The marriage has
been wrecked beyond the hope of salvage, therefore, the public interest and interest of all
concerned lies in the recognition of the fact and to declare defunct de jure what is already
defunct de facto)
14(V Bhagat v. D Bhagat 1994)
15(Krishna vs. Som Nath 1996)
16(Naveen Kohli v. Neelu Kohli 2006)

grant divorce by the high court and regular family courts.17 This viewpoint has breathed life
into the law marriages in the country and helped in safeguarding the marriages in the country.
Moreover the Courts have also observed that the Parties cannot on their own volition make
arguments that the marriage has been broken down and the parties cannot live together hence
the divorce should be granted. The Court re affirmed that the granting of divorce on the
grounds of IBM is a discretionary remedy available with the Supreme Court and the
Legislature itself did not allow dissolving the marriage on such averments.18
Law Commission Report and Marriage Laws Amendment Bill, 2010
However the life has now been blown out of the Hindu Marriage by a series of developments
in the past decade. The barrel roll started with the Supreme Court in the case of Naveen Kohli
v. NeeluKohli requesting the incorporation of irretrievable breakdown of marriage as a new
ground for divorce.19 Taking cue from the advice the Law commission of India SuoMotu took
up the mantle of discussing the various elements attached to the said recommendation by
discussing the 71st report of the law commission and the plethora of Supreme Court cases
which granted the divorce on the said principle.20The Law commission recommended the
incorporation of a new section 13C in the Hindu Marriage act and other marriage acts as well
to introduce IBM as a ground for divorce.

17(Anil Kumar Jain v. Maya Jain 2009)


18(Savitri Pandey v. Prem Chandra Pandey, 2002)(Marriage between the parties cannot
be dissolved only on the (sic) averments made by one of the parties that as the marriage
between them has broken down, no useful purpose would be served to keep it alive. The
legislature, in its wisdom, despite observation of this Court has not thought it proper to
provide for dissolution of the marriage on such averments. There may be cases where, on
facts, it is found that as the marriage has become dead on account of contributory acts of
commission and omission of the parties. no useful purpose would be served by keeping such
marriage alive. The sanctity of marriage cannot be left at the whims of one of the annoying
spouses.)
19(Naveen Kohli v. Neelu Kohli 2006) (Before we part with this case, on the
consideration of the totality of facts, this Court would like to recommend the Union of India
to seriously consider bringing an amendment in the Hindu Marriage Act, 1955 to
incorporate irretrievable breakdown of marriage as a ground for the grant of divorce. A copy
of this judgment be sent to the Secretary, Ministry of Law & Justice, Department of Legal
Affairs, Government of India for taking appropriate steps. )
20(217th Report on Irretrievable Breakdown of Marriage Another Ground for Divorce
March 2009)

The Final Nail in the Coffin was dealt by the Parliament when the Marriage Laws
Amendment Bill, 2010 was tabled in the RajyaSabha for discussion and consideration. The
Bill also proposed the removal of the 6 month statutory cooling period present to help in the
reconciliation of the parties and hence removing the one positive element which aimed at
salvaging the marriage. The Bill has already been passed in the RajyaSabha and is waiting to
be tabled in the LokSabha.
Diluting the Sacramental Nature of the Hindu Marriage
The Hindu marriage is a sacrament and a holy union for the performance of religious duties.
As soon as the marriage is completed the relation of the husband and the wife is to be
considered from the point of view of the welfare of the husband and wife and also the
children, if any, of the marriage.21Within the traditional framework of reference, there is no
doubt that the most important transitional point in a Hindus life is marriage. The leading
studies confirm marriage as the most important of all the Hindu samskaras or life cycle
rituals.22
The Bombay High Court for the first time criticized the Nature of the Amendment brought in
the year 1976 to grant divorce on the basis of mutual consent of the parties and treating the
Hindu Marriage as an ordinary contract rather than the age old concept of it being a religious
sacrament.23
Hence taking into consideration the effect the divorce law under the Hindu Marriage act has
progressed over the years it becomes imperative to understand the possibility of the Hindu
Marriage no longer being Sacramental. The purists may still agree that the marriage is a bond
created in heaven and effectuated on earth. The point that needs to be added to this mentality
is that marriage is also ended on earth with the mutual consent of either party.
The Hindu Marriage act refers to the saptapadi and also recognized any local customs for the
performance of marriage but with the Supreme Court judgement in Seema v. Ashwini Kumar

21(Lakshmi v. G.G.Padma Rao, 1974)


22(Menski 2009)
23(Mr. Santosh Lalmani Tiwari v. Mrs. Aaradhana Devi Santosh Tiwari 2012)(The said
provision has altered legal basis of a Hindu marriage treating it as an ordinary form of
contract which competent parties can enter into and put an end to like any other contract by
mutual consent. The amendment, therefore, circumvents the age-old concept of Hindu law
and morality which has treated the marriage as sacrament and not a contract.)

making the registration of Marriage a compulsory requirement for recognition of the rights of
the parties. It becomes further apparent that the hint of sacramental features which were
respected by the Hindu Marriage act has also been removed.
However the author agrees that the Post-Modern Hindu Divorce Law does not operate in a
friendly social environment of consensual debate about the basic rules of society and the
extent of individualism. Rather we are in a conflict-laden war zone of ideological struggles
over tradition and modernity, religion and secularism, male claims to dominance and female
assertions of equality.24 But in the midst of a progressive movement towards the modern
society we have forgotten our roots and meddled with the basic structure of the Hindu
Personal Law i.e. The Sacramental Nature of the Hindu Marriage. The Hindu Marriage today
only in its small core encompasses the sacramental features to appease the ignorant while the
entire crust and shell of the Marriage has now based on the contractual feature of consentas is
evident in S.13b of the Hindu Marriage Act Divorce by Mutual Consent.

24(Menski 2009)

Bibliography
217th Report on Irretrievable Breakdown of Marriage Another Ground for Divorce. Law
Commission of India, March 2009.
71st Report on The Hindu Marriage Act 1955 Irretrievable Breakdown of Marriage as a
ground for Divorce. Law Commission of India, 1978.
Anil Kumar Jain v. Maya Jain. (2009) 10 SCC 415 (Supreme Court of India, 2009).
Ashok Hurra v. Rupa Bipin Zaveri. (1997) 2 SCC 25 (Supreme Court of India, 1997).
Devinder Singh Narula v. Meenakshi Nangia. Civil Appeal NO.5946 OF 2012 (Arising out of
SLP(C)No.21084 of 2012) (The Supreme Court of India, 2012).
Hindu Marriage Act. Government of India, 1955.
K.Sankaran v. S.Revathi. II (1990) DMC 236 (Madras High Court, 1990).
Kiritbhai Girdharbhai Patel v. Prafulaben Kiritbhai Patel. AIR 1993 Guj 111 (Gujarath High
Court, 1993).
Krishna vs. Som Nath. (1996) DMC 667 (P&H). (Punjab & Haryana High Court, 1996).
Lakshmi v. G.G.Padma Rao, . AIR 1974 SC 165 (Supreme Court, 1974).
Leela Mahadeo Joshi v. Mahadeo Sitaram Joshi. AIR 1991 Bom 105 (Bombay High Court,
1991).
Menski, Werner F. Hindu Law Beyond Tradition and Modernity. Oxfor University Press,
2009.
Mr. Santosh Lalmani Tiwari v. Mrs. Aaradhana Devi Santosh Tiwari. Family Court Appeal
No. 90 of 2012 (High Court of Bombay, 2012).
Navdeep Kaur v. Mahinder Singh Ahluwalia. AIR 2010 P&H 90 (Punjab & Harayan High
Court, 2010).
Naveen Kohli v. Neelu Kohli. (2006) 4 SCC 558 (Supreme Court of India, 2006).
Sanghamitra Ghosh v. Kajal Kumar Ghosh. (2007) 2 SCC 220 (Supreme Court of India,
n.d.).
Savitri Pandey v. Prem Chandra Pandey, . (2002) 2 SCC 73 (Supreme Court of India, 2002).
Sureshta Devi v. Om Prakash. (1991) 4 SCC 226 (Supreme Court of India, 1991).
V Bhagat v. D Bhagat . (1994) 1 SCC 337. (Supreme Court, 1994).

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