Divorce by mutual consent is addressed under S. 13 B of the Hindu Marriage Act, 1955 and Section 28 of the Special Marriage Act, 1954. For parties to seek divorce by mutual consent, they must be living separately for a period of atleast one year, and must resolve towards the end of the marriage. 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 free. If after 6 months the petition is not withdrawn, the parties may move the court within 18 months, after which the Court may grant the divorce.
Marriages are considered as sacred alliance for life, it is not just a union between two persons but between two families. Nonetheless, it is a relation between two people and since no human is perfect it is highly probable that two people do not feel compatible with each other so as to live together a whole life. Therefore, it can be seen that the cases of divorce are fast rising even in countries like India where marriages are considered to be made in heaven. In these circumstances, it is always better that couple take divorce by mutual consent so as to avoid further disputes, time and money.
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 Section 28 of the Special Marriage Act, 1954 deals with the provision of divorce on grounds of mutual consent. This project will analyse these sections and also deal with the various amendments incorporated in these sections.
Hindu Marriage Act
The ground of divorce by mutual consent was inserted in the Hindu Marriage Act 1955 by an amendment in 1976, by adding Section 13B. Section 13B of the Hindu Marriage Act, 1955 runs:
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 the Marriage Laws (Amendment) Act, 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.
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.
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 Marriage Act are as follows:
The parties have been living separately for a period of at least one year
They have not been able to live together, and
They have mutually agreed that marriage should be resolved.
The first requirement is that the parties should be living separately for a period of at least one year before filing the divorce petition. It is necessary to understand what does the term “living separately’ means.
The Supreme Court of India in the case of Sureshta Devi v Om Prakash has ruled out “that the expression living separately connotes 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, and yet they may not be living as husband and wife. What seems to be important is that they have no desire to perform marital obligations and with that they have been living separately for a period of one year immediately preceding the presentation of the petition.” It has been ruled out by Supreme Court in various cases that the expression “have been living separately’ does not necessarily means physical separation or living separately and apart what is material is that no marital obligations are performed between the spouses and they are not living together as husband and wife.
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 established is that the parties have not been able to live together.
In Sureshta Devi v Om Prakash, the Supreme Court observed that expression “have not been able to live together” seems to indicate the concept of broken down marriage so much so that there is no possibility 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 presented a petition by mutual consent is indicative of this fact that they have not been able to live together.However, it is very imperative to determine whether consent given by both the parties is free and not obtained by any kind of force, fraud or undue influence.
After satisfying the above two requirements and filing a joint petition for divorce by mutual consent, the parties must wait for at least six months, usually termed as the “cooling period”. After the end of this period, if the initial petition is not withdrawn by either of the parties or jointly, both the parties may move court by way of joint motion within the stipulated period of 18 months from the initial date of the filing of the joint petition. This period is given to parties to re-think their decision.
The following aspects of this provision have been subject to judicial interpretation:
Whether the waiting period of six months is mandatory or directory
There have been conflicting judgements on this regard that whether the courts should mandatorily wait for a period of six months as given in the sub section(2) of Section 13B. In the Grandhi Venkata Chitti Abbai case, the court observed that- “If Section 13-B (2) is read as mandatory, the very purpose of liberalizing the policy of decree of divorce by mutual consent will be frustrated more so when the parties started living separately for a considerable time. Thus s 13-B (2) though is mandatory in form is directory in substance. Likewise, in the case of Dinesh Kumar Shukla v Neeta, 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 13-B (1) are fulfilled) when all efforts at reconciliation failed.
But, in the case of Hitesh Narendra Doshi v Jesal Hitesh Joshi, it was held that “the provision has a definite purpose and object, i.e. giving time to the parties for introspection and reconciliation. That purpose and object stares at us so clearly by the language expressed in s 13-B (2) of the Act robbing away the right of the court from considering the petition earlier than six months.”
In the case of Ashok Hurra v Rupa Ashok, 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 even waiting for the statutory period of six months stipulated in s. 13-B of the Act. This doctrine of irretrievable break-down of marriage is not available even to the High Courts which do not have powers similar to those exercised by the Supreme Court under Article 142 of the Constitution.”
Therefore, the courts have been inclined more towards waiving off this period if the circumstance of the case demands so and where there is no chance of reconciliation between the parties. Also, Supreme Court by way of its extraordinary powers as provided under Article 142 of the Indian Constitution can grant divorce without waiting for 6 months if it is 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 period of 6 months. But as it is evident from many cases where there is no possibility of reconciliation between the parties and the marriage has been broken down irretrievably, the courts should follow the spirit of law more than the formal requirements of the section.
Whether consent can be unilaterally withdrawn
There have been contrasting judgements on this issue. The controversy is that since under this section both parties have to file a joint petition for divorce how can one party unilaterally withdraw from it. Also, one of the purposes of giving a time period of six months is to allow parties to re-think their decision and if one of the party decides to withdraw from it, why should it not be allowed to do so.
In Jayashree Ramesh Londhe v Ramesh Bhikaji, the court held that 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, it was held that- “If both the parties had voluntarily consented to file the petition for dissolving the marriage by mutual consent and all other conditions mentioned in sub-section (1) of section 13-B of the Act are fulfilled, it will not be open to a party to withdraw the consent.”
On the other hand, in Sureshta devi v Om Prakash, the Court has held that petition of divorce can be withdrawn unilaterally. It was held in this case that if one of the parties withdraws its consent the Court cannot pass a decree of divorce by mutual consent. The Court held that “if the decree is solely based on the initial petition it negates the whole idea of mutuality and consent for divorce. Mutua consent to divorce is sine qua non for passing a decree for divorce under Section 13-B. Mutual consent should continue till the divorce decree is passed.”
However, in a recent judgement of Supreme Court in the case of Anil Kumar Jain v Maya Jain it was held that- “Under the existing laws, the consent given by the parties at the time of filing of the joint petition for divorce by mutual consent has to subsist till the second stage when 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 only in special circumstances, in normal circumstances the provisions of the statute have to be given effect to.
The law as explained in the Sushreta Devi’s case still holds good that is the parties can withdraw consent unilaterally. But Supreme Court using its power as provided under Article 142 of the Constitution can grant divorce even if the wife or husband withdraws its consent during the proceedings in the lower court and prior to the passing of the decree.
Whether mere silence at the second stage would tantamount to withdrawal
If the parties who have filed for divorce under mutual consent and after the end of the 6 month period what is to be done if either of them do not turn up. Will it amount to withdrawal of consent? Rajasthan High Court in the case of Suman v Surendra Kumar has answered these issues. In this case the husband after filing a joint consent petition for divorce did not appear for hearings. The family court held that no decree 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 than for absence of consent.” It was held that silence cannot be taken to amount to withdrawal of consent.
Through this paper, we have analysed the Section 13-B of the Hindu Marriages Act. Divorce by mutual consent provides an opportunity of amicable resolution of disputes between parties and saves time and money. The requirements as provided under this section are that before filing a joint petition for divorce parties must be living separately for a period of at least one year. As we mentioned out earlier living separately does not necessarily connotes physical separation, what is essential is that parties are not fulfilling marital obligations and not living as husband and wife. The second requirement is that the parties have not been able to live together. The fact that both the parties have filed a joint petition by mutual consent is indicative of the face that parties have not been able to live together. Only thing that is important is that the consent has been obtained freely and not by way of force, fraud or undue influence as the whole purpose of mutual consent will be vitiated if consent is not free. After parties have filed a joint petition for divorce fulfilling all the requisite conditions they are given a time period of six months and not more than eighteen months after which they have to file a second motion and courts after hearing the parties and scrutinising the averments in the petition pass a decree of divorce. The three points of 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 have adopted different yardsticks in the interpretation of the Section 13-B. Some High Courts have held that the waiting period of six months is mandatory as per the section whereas some High Courts have adopted the spirit of law more than the technical words of the section and have 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 petition of divorce can be withdrawn unilaterally. On the third issue the courts have ruled out that silence or not appearing for hearings will not amount to withdrawal of consent.
Edited by Neerja Gurnani
 Kusum, Family Law Lectures (2nd, Lexis Nexi Butterworths wadhwa, Nagpur 2007) 161