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Divorce by mutual consent


March19,2015byNeerjaGurnani 1Comment

Anonymous

Editorsnote:
DivorcebymutualconsentisaddressedunderS.13Bofthe
Hindu Marriage Act, 1955 and Section 28 of the Special
Marriage Act, 1954. For parties to seek divorce by mutual
consent,theymustbelivingseparatelyforaperiodofatleast
oneyear,andmustresolvetowardstheendofthemarriage.
They must not be performing marital obligations physical
separation is not a criteria. The marriage must be beyond
reconciliation, and presenting a petition for divorce together
does not indicate amicability. Consent, however, must be
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free. If after 6 months the petition is not withdrawn, the


partiesmaymovethecourtwithin18months,afterwhichthe
Courtmaygrantthedivorce.

Introduction
Marriagesareconsideredassacredallianceforlife,itisnotjustaunion
between two persons but between two families. Nonetheless, it is a
relation between two people and since no human is perfect it is highly
probablethattwopeopledonotfeelcompatiblewitheachothersoasto
live together a whole life. Therefore, it can be seen that the cases of
divorcearefastrisingevenincountrieslikeIndiawheremarriagesare
consideredtobemadeinheaven.Inthesecircumstances,itisalways
betterthatcoupletakedivorcebymutualconsentsoastoavoidfurther
disputes,timeandmoney.
This paper will essentially deal with the idea of divorce on grounds of
mutual consent. Section 13 B of the Hindu Marriage Act, 1955 and
Section28oftheSpecialMarriageAct,1954dealswiththeprovisionof
divorce on grounds of mutual consent. This project will analyse these
sections and also deal with the various amendments incorporated in
thesesections.

Hindu Marriage Act


The ground of divorce by mutual consent was inserted in the Hindu
MarriageAct1955byanamendmentin1976,byaddingSection13B[1].
Section13BoftheHinduMarriageAct[2],1955runs:
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 solemnised before or after the commencement of
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the Marriage Laws (Amendment) Act, 1976, on the ground that


theyhavebeenlivingseparatelyforaperiodofoneyearormore,
that they have not been able to live together and that they have
mutuallyagreedthatthemarriageshouldbedissolved.
Onthemotionofboththepartiesmadenotearlierthansixmonths
afterthedateofthepresentationofthepetitionreferredtoinsub
section(1)andnotlaterthaneighteenmonthsafterthesaiddate,
ifthepetitionisnotwithdrawninthemeantime,thecourtshall,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
divorcedeclaringthemarriagetobedissolvedwitheffectfromthe
dateofthedecree.
Section 28 of the Special Marriage Act, 1954 which also deals with
divorce on grounds of mutual consent is pari materia to the above
section.

Requirements of divorce by mutual


consent
The requirements which have to be met to seek divorce under Hindu
MarriageActareasfollows:
Thepartieshavebeenlivingseparatelyforaperiodofatleastone
year
Theyhavenotbeenabletolivetogether,and
Theyhavemutuallyagreedthatmarriageshouldberesolved.[3]
Thefirstrequirementisthatthepartiesshouldbelivingseparatelyfora
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period of at least one year before filing the divorce petition. It is


necessarytounderstandwhatdoesthetermlivingseparatelymeans.

Living separately
The Supreme Court of India in the case of Sureshta Devi v Om
Prakash[4]hasruledoutthattheexpressionlivingseparatelyconnotes
not living like husband and wife. It has no reference to the place of
living. The parties may live under same roof by way of circumstances,
andyettheymaynotbelivingashusbandandwife.Whatseemstobe
importantisthattheyhavenodesiretoperformmaritalobligationsand
with that they have been living separately for a period of one year
immediately preceding the presentation of the petition. It has been
ruledoutbySupremeCourtinvariouscasesthattheexpressionhave
beenlivingseparatelydoesnotnecessarilymeansphysicalseparation
or living separately and apart what is material is that no marital
obligationsareperformedbetweenthespousesandtheyarenotliving
togetherashusbandandwife.

Parties have not been able to live together


After establishing the first requirement that the parties were living
separately for one year or more, the second point that has to be
establishedisthatthepartieshavenotbeenabletolivetogether.
In Sureshta Devi v Om Prakash[5], the Supreme Court observed that
expressionhavenotbeenable tolivetogether seems toindicate the
conceptofbrokendownmarriagesomuchsothatthereisnopossibility
of any reconciliation. The parties need not establish the fact that they
have not been able to live together. The very fact that they have
presentedapetitionbymutualconsentisindicativeofthisfactthatthey
havenotbeenabletolivetogether.[6]However,itisveryimperativeto
determine whether consent given by both the parties is free and not
obtainedbyanykindofforce,fraudorundueinfluence.
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Aftersatisfyingtheabovetworequirementsandfilingajointpetitionfor
divorcebymutualconsent,thepartiesmustwaitforatleastsixmonths,
usuallytermedasthecoolingperiod.Aftertheendofthisperiod,ifthe
initialpetitionisnotwithdrawnbyeitherofthepartiesorjointly,boththe
parties may move court by way of joint motion within the stipulated
periodof18monthsfromtheinitialdateofthefilingofthejointpetition.
Thisperiodisgiventopartiestorethinktheirdecision.
The following aspects of this provision have been subject to judicial
interpretation:[7]

Whether the waiting period of six


months is mandatory or directory
Therehavebeenconflictingjudgementsonthisregardthatwhetherthe
courtsshouldmandatorilywaitforaperiodofsixmonthsasgiveninthe
sub section(2) of Section 13B. In the Grandhi Venkata Chitti Abbai[8]
case,thecourtobservedthatIfSection13B(2)isreadasmandatory,
theverypurposeofliberalizingthepolicyofdecreeofdivorcebymutual
consent will be frustrated more so when the parties started living
separatelyforaconsiderabletime.Thuss13B(2)thoughismandatory
informisdirectoryinsubstance.Likewise,inthecaseofDineshKumar
Shukla v Neeta,[9] it was held that the waiting period is directory in
nature and it can be brought down from 6 months( provided the
mandatory requirements of s 13B (1) are fulfilled) when all efforts at
reconciliationfailed.
But, in the case of Hitesh Narendra Doshi v Jesal Hitesh Joshi,[10] it
washeldthattheprovisionhasadefinitepurposeandobject,i.e.giving
timetothepartiesforintrospectionandreconciliation.Thatpurposeand
objectstaresatussoclearlybythelanguageexpressedins13B(2)of
theActrobbingawaytherightofthecourtfromconsideringthepetition
earlierthansixmonths.
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In the case of Ashok Hurra v Rupa Ashok,[11] it was held that in


exercise of its extraordinary powers under Article 142 of the
Constitution, the Supreme Court can grant relief to the parties without
evenwaitingforthestatutoryperiodofsixmonthsstipulatedins.13B
of the Act. This doctrine of irretrievable breakdown of marriage is not
availableeventotheHighCourtswhichdonothavepowerssimilarto
those exercised by the Supreme Court under Article 142 of the
Constitution.
Therefore,thecourtshavebeeninclinedmoretowardswaivingoffthis
periodif the circumstanceofthecasedemands so andwherethereis
no chance of reconciliation between the parties. Also, Supreme Court
bywayofitsextraordinarypowersasprovidedunderArticle142ofthe
IndianConstitutioncangrantdivorcewithoutwaitingfor6monthsifitis
satisfied that the marriage is irretrievably broken down. However, this
power is restricted only to Supreme Court. There is still uncertainty
whether High Courts and Family Courts have to mandatorily wait for a
periodof6months.Butasitisevidentfrommanycaseswherethereis
nopossibilityofreconciliationbetweenthepartiesandthemarriagehas
beenbrokendownirretrievably,thecourtsshouldfollowthespiritoflaw
morethantheformalrequirementsofthesection.

Whether consent can be unilaterally


withdrawn
Therehavebeencontrastingjudgementsonthisissue.Thecontroversy
isthatsinceunderthissectionbothpartieshavetofileajointpetitionfor
divorcehowcanonepartyunilaterallywithdrawfromit.Also,oneofthe
purposesofgivingatimeperiodofsixmonthsistoallowpartiestore
think their decision and if one of the party decides to withdraw from it,
whyshoulditnotbeallowedtodoso.
InJayashreeRameshLondhevRameshBhikaji,[12]thecourtheldthat
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once a joint petition by mutual consent was filed, no party could


withdraw from it without the consent of both the parties. Likewise, in
Nachhattar Singh v Harcharan Kaur,[13] it was held that If both the
parties had voluntarily consented to file the petition for dissolving the
marriagebymutualconsentandallotherconditionsmentionedinsub
section(1)ofsection13BoftheActarefulfilled,itwillnotbeopentoa
partytowithdrawtheconsent.
On the other hand, in Sureshta devi v Om Prakash[14], the Court has
heldthatpetitionofdivorcecanbewithdrawnunilaterally.Itwasheldin
this case that if one of the parties withdraws its consent the Court
cannotpassadecreeofdivorcebymutualconsent.TheCourtheldthat
ifthedecreeissolelybasedontheinitialpetitionitnegatesthewhole
idea of mutuality and consent for divorce. Mutua consent to divorce is
sine qua non for passing a decree for divorce under Section 13B.
Mutualconsentshouldcontinuetillthedivorcedecreeispassed.[15]
However, in a recent judgement of Supreme Court in the case of Anil
KumarJainvMayaJain[16] itwas heldthat Undertheexistinglaws,
theconsentgivenbythepartiesatthetimeoffilingofthejointpetition
fordivorcebymutualconsenthastosubsisttillthesecondstagewhen
the petition comes up for orders and a decree for divorce is finally
passed and it is only the Supreme Court, which, in exercise of its
extraordinary powers under Article 142 of the Constitution, can pass
orders to do complete justice to the parties. The Supreme Court
however clearly expressed that only use the power under Article 142
onlyinspecialcircumstances,innormalcircumstancestheprovisionsof
thestatutehavetobegiveneffectto.
ThelawasexplainedintheSushretaDeviscasestillholdsgoodthatis
thepartiescanwithdrawconsentunilaterally.ButSupremeCourtusing
its power as provided under Article 142 of the Constitution can grant
divorce even if the wife or husband withdraws its consent during the
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proceedingsinthelowercourtandpriortothepassingofthedecree.

Whether mere silence at the second


stage would tantamount to
withdrawal
Ifthepartieswhohavefiledfordivorceundermutualconsentandafter
theendofthe6monthperiodwhatistobedoneifeitherofthemdonot
turnup.Willitamounttowithdrawalofconsent?RajasthanHighCourt
in the case of Suman v Surendra Kumar[17] has answered these
issues. In this case the husband after filing a joint consent petition for
divorcedidnotappearforhearings.Thefamilycourtheldthatnodecree
could be passed in the absence of both the parties. On appeal it was
held by the court that When one party has himself left the matter for
inference, the inference ought to be drawn in favour of consent rather
thanforabsenceofconsent.Itwasheldthatsilencecannotbetakento
amounttowithdrawalofconsent.

Conclusion
Through this paper, we have analysed the Section 13B of the Hindu
Marriages Act. Divorce by mutual consent provides an opportunity of
amicable resolution of disputes between parties and saves time and
money.Therequirementsasprovidedunderthissectionarethatbefore
filing a joint petition for divorce parties must be living separately for a
periodofatleastoneyear.Aswementionedoutearlierlivingseparately
doesnotnecessarilyconnotesphysicalseparation,whatisessentialis
thatpartiesarenotfulfillingmaritalobligationsandnotlivingashusband
andwife.Thesecondrequirementisthatthepartieshavenotbeenable
tolivetogether.Thefactthatboththepartieshavefiledajointpetition
by mutual consent is indicative of the face that parties have not been
abletolivetogether.Onlythingthatisimportantisthattheconsenthas
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beenobtainedfreelyandnotbywayofforce,fraudorundueinfluence
asthewholepurposeofmutualconsentwillbevitiatedifconsentisnot
free. After parties have filed a joint petition for divorce fulfilling all the
requisiteconditionstheyaregivenatimeperiodofsixmonthsandnot
more than eighteen months after which they have to file a second
motion and courts after hearing the parties and scrutinising the
avermentsinthepetitionpassadecreeofdivorce.Thethreepointsof
contention are that whether the waiting period of six months is
mandatory or directory, the second is that can parties unilaterally
withdraw their consent and third that whether silence at the second
stage would amount to tantamount to withdrawal. There have been
contrasting judgements on the first two issues. Different high courts
haveadopteddifferentyardsticksintheinterpretationoftheSection13
B.SomeHighCourtshaveheldthatthewaitingperiodofsixmonthsis
mandatoryasperthesectionwhereassomeHighCourtshaveadopted
thespiritoflawmorethanthetechnicalwordsofthesectionandhave
ruled out that the period is directory if there is no chance of
reconciliation between the parties. However, Supreme Court using its
extraordinary powers under Article 142 of Constitution can pass the
decree of divorce without waiting for a period of 6 months. Also,
Supreme Court in the case of Sushreta Devi has ruled out that the
petitionofdivorcecanbewithdrawnunilaterally.Onthethirdissuethe
courtshaveruledoutthatsilenceornotappearingforhearingswillnot
amounttowithdrawalofconsent.
EditedbyNeerjaGurnani
[1]Kusum,FamilyLawLectures(2nd,LexisNexiButterworthswadhwa,
Nagpur2007)161
[2]TheHinduMarriageAct1955s13(B)
[3]ParasDiwan,LawofMarriage&Divorce(5th,UniversalLaw
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PublishingCo.,NewDelhi2008)525
[4](1992)AIRSC1904
[5]Id
[6]ParasDiwan,LawofMarriage&Divorce(5th,UniversalLaw
PublishingCo.,NewDelhi2008)529
[7]Kusum,FamilyLawLectures(3rd,LexisNexiButterworthswadhwa,
Nagpur2002)162
[8]AIR1999AP91
[9]AIR2005MP106
[10]AIR2000AP364
[11]AIR1997SC
[12]AIR1984Bom302
[13]AIR1986P&H
[14]AIR1992SC
[15]Id
[16]AIR2009SC
[17]AIR2003Raj155

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Youmayalsolike:

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Comments

Gourabsays
September14,2015at2:51pm
Awesome,itwasveryuseful.
EspeciallyWhethermeresilenceatthesecondstagewould
tantamounttowithdrawal!Evenmanylawyerdontknowthis.
Reply

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