|Legal service India - Section 13B divorce by Mutual Consent|
Divorce by mutual consent in IndiaSection 13B states the laws related to divorce by Mutual Consent - Call us at Ph no: 9650499965
Chat with us (2 PM - 9 PM IST)
|Articles | Family Laws | Income-Tax | forms | law Forum | Criminal laws | Civil laws | Constitution | Immigration | Cyber Law | Trademarks|
|Law Governing Divorce by mutual consent
A consent decree per se in matrimonial matter is not collusive. As would be evident from the legislative intent of s. 13B of the Act divorce by mutual consent is no longer foreign to Indian law of divorce.
In an appeal against the dismissal of a petition for divorce under s. 13 of the Act a compromise petition signed by the parties and their respective lawyers was filed praying for dissolution of marriage by mutual consent. It was held that s. 13B(2) of the Act is directory only. Section 13B(2) no doubt cautions the court of its duty to fight the last ditch battle to save the marriage, but when the court is fully satisfied on the basis of the proved facts that in the interests of justice of the society and the individuals marriage tie should be put as under immediately, s. 13B(2) does not impose any fetter on the powers of the court to grant decree of divorce. The time-table fixed by s. 13B(2) does not apply to an appellate court.
Where the ingredients necessary for a decree of mutual divorce under s. 13B are proved by the evidence of the parties, the court cannot refuse a decree for divorce. The ingredients are that they had been living separately for a period of more than one year and that they had not been able to live together and that they had mutually agreed that the marriage should be dissolved.19 Section 13B(l) does not envisage the recording of the statements of the parties at the time, of filing of the joint petition and merely because their statements were not so recorded, they could not have been denied the relief of divorce.20 There is a fourth ingredient for a decree of divorce by mutual consent, that i the consent of the parties has been obtained not by force, fraud or undue influence.-I A compromise decree can be recorded and divorce may be granted under Or. 22, r. , CPC provided the court is satisfied that a ground for divorce specified in the statute can be spelt out from the records.
The parties in a case2 had signed a memorandum of compromise stating that th~ husband would pay certain amount to the wife in two installments by Demand Dra and the decree for divorce by mutual consent would take effect after payment of ~ second installment. It has been held that the decree for dissolution of marriage solemnized between the parties has to be passed in terms of the memorandum of compromise filed in the court.
Divorce by mutual consent
(l) Subject to the provisions of this Act petition for dissolution of marriage by a decree of divorce may be presented :0 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, 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. 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.
Corresponding law. Sections 13A and 13B of the Act correspond to s 27A and 28 of the Special Marriage Act 1954, respectively
Insertion of sections 13A and 138Sections 13A and 13B were inserted by the Marriage Laws (Amendment) Act 1976. Section 13A provides that under certain circumstances the court may, while dealing with a petition for divorce, have a discretion to grant a decree for judicial separation instead. Under s. 13B of the Act divorce by mutual consent has now received statutory blessing.
Scope of section 13AUnder s. 13A the court can grant a decree for judicial separation though the petitioner asked for a decree of divorce.9 This is an alternative relief as provided in s. 13A of the Act. Section 13A commences with the words "alternative relief in divorce proceedings" and provides power to the court in a petition for divorce, if it considers just so to do, taking into consideration the circumstances of the case, to pass a decree for judicial separation. It is only when the ground on which divorce is sought is made out, then the court in the circumstances of the case may grant judicial separation.
Scope of section 13BIn a petition under s. 13B of the Act the parties are not required to prove anything in addition to that laid down in the section itself.!! During pendency of appeal in divorce proceedings, the parties may agree to dissolve the marriage by mutual consent or compromise provided it is neither unlawful nor the result of collusion. It is now possible to dissolve a marriage by agreement between the parties although none of the grounds on which a marriage may be dissolved by a court is found to exist.!2 Even a petition by one party may be converted into a fresh petition for dissolution of marriage by mutual consent.13 Where a divorce is granted without following the procedure laid down in s. 13B of the Act, the order is invalid.
Parties merely agreed orally at the time of arguments that they had mutually agreed that their marriage should be dissolved by mutual consent. The petition filed under s. 13(1)(ia) and (ib) cannot be treated to have been filed under s. 13B and the decree for divorce by mutual consent cannot be passed in such a situation. Further it is also a mandatory provision under s. 23(1)(bb) of the Act to satisfy the court that consent has not been obtained by force, fraud or undue influence.
In Preeti Singh v Sandeep Singh the divorce between the parties was granted by mutual consent according to the directions of the Supreme Court.
• Know your legal options
• Information about your legal issues
File Mutual Consent DivorceRight Away
Call us at Ph no: 9650499965
Call us at Ph no: 9891244487
Online legal AdviceReceive professional Legal Solution within 48hrs
Divorce: Divorce is not about filling out forms, it is about thinking things out and making sound decisions. Likewise, if your case calls for a marital settlement agreement, having it typed and signed is not the point.
Adultery laws in India: Either party to the marriage may present a petition for divorce under cl. (i) of sub-sec. (1) of s. 13, on the ground of adultery of the respondent. The expression 'living in adultery' used in old s. 13(I)(i) meant a continuous course of adulterous life
Divorce in India: Any Any marriage which is solemnized, whether before or after the commencement of the Hindu marriage Act, may be Dissolved by a decree of divorce, by either the Husband or the wife presenting the petition
Effects of Divorce: Supreme Court in exercising the power under Art. 142 of the Constitution of India has held that where the marriage is dead and there is no chance of its being retrieved, it is better to bring it to an end
Grounds for Divorce: Adultery, Cruelty, Desertion, Conversion, Unsoundness of mind, Schizophrenia, Virulent and incurable leprosy, Entering new religious order, Presumption of death, Non-compliance with a decree of judicial separation, Non-compliance with a decree of restitution of conjugal rights
Right to Abortion: An abortion is the removal or expulsion of an embryo or fetus from the uterus, resulting in, or caused by, its death.
Family Courts in India: The Family Courts Act, 1984 was part of the trends of legal reforms concerning women. Because of the building pressure from various institutions lobbying for the welfare of women all over the country
Rights of Second Wife: Second marriage, during the subsistence of the first marriage, is illegal in India and the relationship arising from the same does not have any validity.
Divorce under Muslim Law: There are two categories of divorce under the Muslim law: 1) Extra judicial divorce, and 2) Judicial divorce
Grounds for Divorce for wife: Husband having more than one wife living, Rape, sodomy or bestiality, Decree or order of maintenance, Marriage before attainment of the age of fifteen years and Consent obtained by force,
Restitution Of Conjugal Rights: Section 9 of the Hindu Marriage Act, 1955 embodies the concept of Restitution of Conjugal Rights under which after solemnization of marriage if one of the spouses abandons the other, the aggrieved party has a legal right to file a petition in the matrimonial court for restitution of conjugal rights.
Recognition of Equality Marriage: Marriage is an eternal bond, the essence of family. In most parts of the world, the idea of marriage is confined strictly to union of two biologically different sexes, one man and one woman, the basic formula for propagating the species.
Irretrievable breakdown of marriage: It cannot be said in case a marriage is found to have been broken down to an extent that it was beyond all rapprochement or reconciliation, then whether any ground as laid down by law exists
Right of Abortion v. Child in Mother's Womb: Abortion means deliberate ending of a pregnancy at an early stage. Abortion is the subject of strong public debate, especially in the US. Some people are in favour of abortion; called pro-choice supporters,
Custody - Hindu, Muslim, Christian & Parsi Law’s: Child custody is a term used in family law courts to define legal guardianship of a child under the age of 18. During divorce or marriage annulment proceedings, the issue of child custody often becomes a matter for the court to determine
Guardianship - Hindu, Muslim, Christian & Parsi Laws: The Dharmashastras did not deal with the law of guardianship. During the British regime the law of guardianship was developed by the courts.
Adoption - Hindu, Muslim, Christian And Parsi Laws: Hindu Law, Muslim Law and the Guardians and Wards Act, 1890 are three distinct legal systems which are prevalent. A guardian may be a natural guardian, testamentary guardian or a guardian appointed by the court.
Child Custody law in India: Section 26 of Hindu Marriage Act, 1955 deals with Custody of Children
In any proceeding under this Act, the court may, from time-to-time, pass such interim orders and make such provisions in the decree as it may deem just and proper with respect to the custody, maintenance and education of minor children, consistently with their wishes, wherever possible and may, after the decree,
File Mutual Consent Divorce
| Delhi - New Delhi
Transfer of Petition |
legal Service India is Copyrighted under the Registrar of Copyright Act ( Govt of India) © 2000-2016
ISBN No: 978-81-928510-0-6