Divorce By Mutual Consent Under Hindu Marriage Act (Section 13B)

Introduction

Marriage is regarded as sacred in Hinduism. According to Hindu thought, a new phase of life starts when a person gets married. The Brahmacharya phase, the first phase of life, ends, and the Grihastha phase, the second, starts. It was established in the case of Koppisetti Subbharao v. State of Andhra Pradesh[1] marriage was regarded as the union of two spirits. Thus, weddings may be considered a lifelong holy connection, and they are not limited to the union of two individuals but also of two families. When people were married in ancient times, it was considered a lifelong commitment. However, this idea of marriage as a lifelong commitment has experienced a significant shift throughout the years. Bitterness is inevitable in the present world of consumerism when there are many inconsistencies, materialism coming from social media leading to disagreements between partners. Such a connection has often led to the breakup of the marital union. There has been much discussion over the usefulness of the 1976 amendment to the Hindu Marriage Act, 1955’s Section 13B, which permits divorce by mutual consent, to resolve issues between partners peacefully.

This article aims to provide an overview of Divorce by Mutual Consent under the Hindu Marriage Act, 1955.

The word “divorce” refers to the legal process of ending a marriage. Divorce is often viewed as the most effective method of ending one’s marital responsibilities. It is the most acceptable method to resolve an unexplainable disagreement between the spouses and formally terminate the marital partnership.

Divorce can take one of two forms, namely

  • A contested divorce
  • Divorce by mutual consent

This article will only discuss the second kind of divorce, i.e., divorce by mutual consent.

Mutual Consent Divorce or Mutual Divorce occurs when the husband and wife agree that they can no longer live together and that divorce is the best option. They make a joint petition to the court without making any accusations against each other.[2]

Section 13B of The Hindu Marriage Act, 1955

The first occasion that the notion of divorce by mutual agreement was applied to Section 13B was in Leela Mahadeo Joshi v. Mahadeo Sitaram Joshi[3], which was heard in the Bombay High Court. Section 13B of the Hindu Marriage Act, 1955, provides for divorce with the mutual consent of the parties. However, it should be noted that this clause was not in the Hindu Marriage Act, 1955. Forcibly ending marriages without the other party’s permission became commonplace after the enactment of this law. Often, women were forced to divorce their husbands due to their husband’s treatment of them. Consequently, the creation of a divorce by mutual consent clause was necessary to raise the position of women in the community. Because of this, Section 13-B was included in the Marriage Law Amendment Act, 1976.

Important Components of Divorce By Mutual Consent

The important components Section 13B of the Hindu Marriage Act, 1955[4]

  1. For at least a year, the parties had been living apart from each other.
  2. It’s been impossible for the two sides to live together.
  3. The divorce was agreed upon by both parties.

Living Separately

Living Separately doesn’t just mean being physically apart or living in different places. It also means living under the same roof, but not as husband and wife. It means they aren’t doing what they should be doing as married people.

In the case of Sureshta Devi v Om Prakash[5], the Supreme Court of India stated that the word “living separately” does not imply “not living as husband and wife.” It makes no reference to the location of the person’s residence. By circumstance, the individuals may be living together, but they may not be a husband and wife. What seems to be critical is that they have no willingness to fulfill marital commitments, as shown by their living apart for a period of one year shortly before the petition’s submission.”

The Supreme Court has held on several occasions that the statement “have been living separately” does not necessarily entail physical separation or living separately and apart. What is significant is that the couples are not performing marital duties and are not living together as husband and wife.

Parties couldn’t live together

After demonstrating the first condition that the parties had been living apart for at least a year, the second need is that the parties had not been able to live together.

As noted by the Supreme Court in Sureshta Devi v. Om Prakash[6], “had not been able to live together” implies a marriage in which there is no possibility of a reunion. The mere filing of a divorce petition demonstrates that the parties are unable to cohabitate.

Both parties are consented to end the marriage

The consent of both parties are important in divorce by mutual consent, however, it must be determined that the both parties agreed freely and without force, deception, or undue influence.

Sometimes, the spouses may agree to give their relationship more chance and work through their difficulties peacefully. During the waiting time, it is possible that the partners will be able to come to terms and make things work again.

After the petition for divorce by mutual agreement has been filed, a six-month waiting time is given to the parties, which may be extended to a maximum of 18 months.[7]

Divorcing couples are allowed this time to consider and reconsider their choice. If the parties are unable to live together after the specified term, the district court grants the divorce petition.

If you’ve ever wondered what it’s like to live apart from your spouse after having children, you may want to check out the case of Pradeep Pant v. Government of the National Capital Territory of Delhi[8]. They were unable to coexist. On the basis of mutual agreement, they filed for divorce and resolved the child’s custody, alimony, and other issues.

Why An Interim Period Is Given In Divorce By Mutual Consent?

There is a 6–8-month cooling-off period before completing a divorce. This time is provided to both parties to reconsider the divorce. It allows them to reconsider their marriage. But this waiting time is optional.

In Amardeep Singh v. Harvenn Kaur[9], the couple got into a fight, and the case proceeded from civil to criminal. The couple had decided that they did not want to live together any longer. They had already handled alimony, custody, maintenance, and other issues, and they did not want to be connected with each other. Delaying the divorce was seen to be detrimental by the Supreme Court; hence, the cooling period was waived, and the divorce was granted.

Whether the six-month delay is obligatory or not

Section 13B (2) of the Hindu Marriage Act provides that upon the motion of both parties made not earlier than six months after the date of 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 intervening period, the court shall, upon being satisfied, after hearing the parties and conducting such inquiry as the court deems necessary, declare that a marriage has been solemnized and the petition’s averments are true.

The time period of six to eighteen months specified in section 13B of the Hindu Marriage Act is a suspension period granted to the parties with the goal of providing them with time and an opportunity to reflect on their predicament. During this time of interregnum, both parties or any one of them may have second thoughts.[10]

Whether the courts must wait the six-month term mandated in Section 13B’s subsection (2) has been the subject of contradictory decisions.

If Section 13-B (2) is interpreted as required, the entire goal of liberalizing the policy of decree of divorce by the mutual agreement would be undermined, particularly so when the parties began living apart for a lengthy period,” the court remarked in the Grandhi Venkata Chitti Abbai[11] Thus, whereas section 13-B (2) is necessary for form, it is advisory according to facts

In Dinesh Kumar Shukla v. Neeta[12], the court said that the six-month waiting time was not required and might be decreased in light of the parties’ significant attempts to reconcile. Additionally, the provisions of section 13B (1) must be met.

In Hitesh Doshi v. Jesal Hitesh Joshi[13], a contrary verdict said that “the provision has a specific purpose and objective, namely providing time for the parties to reflect and reconcile.” That objective and intent are made abundantly plain by the wording in s 13-B (2) of the Act, which strips the court of its authority to examine the petition sooner than six months.

In Rupa Ashok Hurra v. Ashok Hurra[14], the Supreme Court declared that “in exercising its exceptional powers under Article 142 of the Constitution, the Supreme Court may provide relief to parties without even waiting the six-month statutory term specified in section 13-B of the Act. This notion of the irreversible breakdown of marriage is not accessible to High Courts, which lack powers comparable to those possessed by the Supreme Court under Article 142 of the Constitution.

Article 142 of the Indian Constitution grants the Supreme Court the exclusive authority to waive the six-month waiting period. Awaiting time may be eliminated in circumstances where there is no prospect of reconciliation. The Civil Courts and High Courts lack the authority to award divorce earlier to the time period specified in the Hindu Marriage Act’s respective provisions or on any grounds other than those specified in Section 13 and 13B[15].

Mutual agreement

Some couples may opt to stay together and try to save their marriage throughout the waiting time. It takes at least six months to a maximum of eighteen months after the first motion is approved before the parties may file for a second motion. Divorcing couples who fail to file a second divorce motion within the 18-month time period will be regarded to have deserted the divorce proceedings.[16]

Is It Possible To Withdraw Consent of Divorce by Mutual Consent At Any Time?

There have been conflicting viewpoints expressed on this subject. The dispute is that when both parties are required to submit a joint petition for divorce under this clause, how may one party unilaterally withdraw from it? Furthermore, one of the goals of allowing six months is to let parties reconsider their choice, and if one of the parties wishes to withdraw from it, why should it not be permitted to do so?

The court decided in Jayashree Ramesh Londhe v Ramesh Bhikaji[17] that once a joint petition was filed by mutual agreement, no party may withdraw from it without the approval of both parties.

In Nachhattar Singh v Harcharan Kaur[18] it was decided that- “If both the parties have willingly accepted to file a petition for dissolving the marriage by mutual agreement and all other requirements listed in subsection (1) of section 13-B of the Act are met, it would not be available to a party to withdraw the consent.” Similarly

In contrast, in the well-known Sureshta Devi v. Om Prakash(supra) case, the court accepted the withdrawal of consent unilaterally. It should be noted that the court cannot grant a divorce if one of the spouses has withdrawn their consent to divorce. When the decree is purely based on the petition, the concept of mutuality and consent to the divorce is thrown out the window. In order to get a divorce decree under Section 13-B, both parties must agree to divorce each other. Mutual consent should be maintained throughout the divorce process.

“Under the present rules, the consent granted by the parties at the time of filing of the joint petition for divorce by mutual agreement has to persist till the second stage when the petition comes up for orders, and a decree for divorce is eventually made, and it is only the Supreme Court, which, in the exercise of its exceptional powers under Article 142 of the Constitution, has the ability to override such consent,” the Supreme Court said in Anil Kumar Jain v. Maya Jain[19].

Is Second-stage Silence Sufficient To Indicate Withdrawal?

What happens if one of the parties to a divorce by mutual consent does not appear after the six-month period has passed? Will it be deemed a consent revocation? In the case of Suman v. Surendra Kumar[20], the Rajasthan High Court addressed these issues.

After filing a joint petition for divorce, the spouse in this instance failed to appear for hearings. The family court concluded that no decree could be issued in the absence of both parties. The court concluded that the inference should be formed to favor consent rather than lack of permission where one party leaves the subject matter to be inferred. Silence, it was ruled, could not be used as a basis for withdrawing one’s consent.

Conclusion

Divorce by mutual consent allows for an amicable settlement of problems between the parties and saves both time and money. To meet this section’s criteria, a couple must have lived apart for at least one year prior to filing a joint petition for divorce. This does not necessarily imply a physical separation, but it does indicate that the parties are no longer performing their marital commitments and are no longer living together as a married couple. Secondly, the parties must have been unable to live together. By filing a joint petition of divorce by mutual agreement, the parties demonstrate that they are unable to coexist peacefully.

The only thing that matters is that the permission was given voluntarily, without coercion, fraud, or other forms of coercion, since otherwise, the entire point of mutual consent would be nullified. It takes six months and no more than eighteen months for a joint petition for divorce to be submitted, following which a second motion must be made, and the courts will issue a decree of divorce after hearing both parties and scrutinizing their averments in the petition. Whether the six-month waiting time is necessary or optional, the ability of parties to unilaterally withdraw their permission, and whether or not silence at the second stage is equivalent to withdrawal are the three main grounds of dispute.

On the first two topics, there have been a variety of views. Section 13-B has been interpreted in a variety of ways by various high courts. If the parties can’t come to an agreement during the six-month waiting time mandated by the provision, some courts have determined that it’s only a guideline and that it’s not necessary to wait if there’s no hope of reunification. However, under Article 142 of the Constitution, the Supreme Court has the ability to issue a divorce decision without a six-month waiting period.

[1] MANU/SC/0689/2009

[2] https://lawrato.com/indian-kanoon/divorce-law/divorce-by-mutual-consent-in-india-130

[3] MANU/MH/0021/1991

[4] https://www.lawctopus.com/academike/divorce-by-mutual-consent/

[5] MANU/SC/0718/1991

[6] Supra.

[7] Rupa Ashok Hurra vs. Ashok Hurra and Ors. {MANU/SC/0910/2002}

[8] 2012 SCC OnLine Del 2436

[9] MANU/SCOR/33911/2017

[10] Suman vs. Surendra Kumar {MANU/RH/0636/2002}

[11] MANU/AP/0797/1998

[12] MANU/MP/0101/2005

[13] MANU/AP/0294/2000

[14] MANU/SC/0910/2002

[15] Swapnil Verma and Ors. vs. Principal Judge, Family Court {MANU/UP/0831/2015}

[16] Arpit Garg vs. Ayushi Jaiswal {MANU/UP/1373/2019}

[17] MANU/MH/0358/1984

[18] MANU/PH/0149/1986

[19] MANU/SC/1593/2009

[20] MANU/RH/0636/2002

Also Read – Doctrine of Pious Obligation in Hindu Law

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Ashutosh

2nd Year BBA. LLB student at Bennett University

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