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Divorce With Mutual Consent Under Hindu Marriage Act 1955

Hindu marriage unites two people for life, allowing them to fulfil dharma, or obligation, artha, or possessions, kama, or physical wishes, and moksha, or absolute divine liberation, together. In India, the constitution recognises this marriage of two people as husband and wife. The issue arises where the two are unable to coexist.

In any scenario, the inevitable outcome is divorce. This paper would aim to thoroughly explore divorce by mutual consent. Nonetheless, there is a relationship between two people, and since no human being is flawless, it is very likely that two people will not be compatible enough to live together for the rest of their lives. As a result, divorce rates are rapidly increasing, even in countries like India, where marriages are perceived to be made in heaven. In these cases, it is often preferable for couples to divorce mutually to prevent further conflict, time, and resources.

This essay would primarily discuss the concept of mutual consent divorce. Section 13 B of the Hindu Marriage Act, 1955, and Section 28 of the Special Marriage Act, 1954, all deal with mutual consent divorce. This project would analyse these parts and the numerous amendments that have been inserted into them.

The Hindu rule of divorce, as codified by the Hindu Marriage Act, 1955, incorporates three theories: the 'Fault' or 'Guilt' theory, the 'Break down' theory, and the 'Consent' theory. According to the fault principle, marriages can be broken only if one of the parties committed a matrimonial offence. According to this theory, a guilty and an innocent party are required, and only the innocent party can seek the remedy of 2 divorce.

Whereas under the no-fault doctrine, the partner seeking divorce is not required to establish that the other spouse committed any matrimonial offence. Each state permits no-fault divorces. To obtain a no-fault divorce, one partner must clearly claim a legal justification for the divorce.

Research Questions
  • To ascertain the importance of using mutual consent as a basis for divorce
  • To gain an understanding of the principle of mutual consent divorce under the Hindu Marriage Act (Nature and scope, its importance and use)
  • How are other divorce philosophies, such as guilt ideology and breakdown philosophy, distinct from mutual concept principle?

Methodology Of Research
The approach used is mostly empirical and descriptive of nature. This project will be focused on secondary sources, and will include a variety of books, magazines, and papers on the subject. Numerous case citations have been made using online research databases such as Manupatra, SCC Online, and Western India. Online articles is accessed via the Jstore and Heinonline repositories.

Mutual Consent Divorce

Since 1976, the Hindu Marriage Act has used mutual consent as a basis for divorce. Prior to 1976, the Special Marriage Act 1954 was the only Indian law that permitted divorce by mutual consent. Individuals married under the provisions of this Act should obtain mutual consent to dissolve their marriage if the marriage fails and the parties so desire.

The Marriage Laws (Amendment) Act 1976 amended the Hindu Marriage Act by adding section 13B, which established mutual consent as a basis for divorce. Clause 1 of Section 13-B of the Hindu Marriage Act states the following: "Subject to the provisions of this Act, a petition for dissolution of marriage by decree of divorce can be presented to the district Court by all parties to a marriage together, unless the marriage was solemnised prior to or after the commencement of the Marriage Laws (Amendment) Act."

To put it simply, the following conditions must be met before a motion for divorce by mutual consent can be filed: First, the spouses must have lived apart for at least one year. This criterion is based on the premise that since they have lived apart for an extended period of time, there is a presumption that they are not involved in continuing the relationship. Second, they have been unable to cohabitate. Third, they have unanimously decided to dissolve the marriage without resorting to coercion, deception, or improper control.

Living Separately

In Sureshta Devi v Om Prakash, the Supreme Court of India ruled that "the word living separately" does not imply "not living as husband and wife." It makes no reference to the residence. The parties may share a roof due to situation, but may not exist as husband and wife. What seems to be critical is that they have no ability to fulfil marital commitments and have been residing apart for one year directly preceding the petition's presentation.

The Supreme Court also held in several cases that the term "have been living apart" does not actually entail actual separation or living apart and apart. What is significant is that the partners are not performing marriage duties and are not living together as husband and wife.

Since determining that the parties lived apart for a period of one year or more, the second condition is to prove that the parties have been unable to live together.

The parties have been unable to coexist
In Sureshta Devi v. Om Prakash, the Supreme Court noted that the phrase "have not been able to live together" seems to imply a marriage that has broken down to the point of no chance of reconciliation. The parties are not required to prove that they have been unable to cohabitate. The very evidence that they have submitted a motion of mutual consent demonstrates their inability to work together.

However, it is critical to ascertain that the parties agree freely and without recourse to coercion, deception, or improper control.

On the other hand, clause 2 of section 13-B states the procedural party to this Divorce as follows:
On the motion of any party 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 interim, the court shall, after.

If the petition is not dismissed, the court may proceed with it on the request of all parties made no earlier than six months after the petition's filing date and no longer than 18 months after that filing date. Prior to entering a divorce order, the court must convince itself, after hearing all parties and conducting necessary investigations, that the petition's averments are valid. Only after such fulfilment is obtained will a declaration of divorce by mutual consent be granted.

How to File a Petition for Mutual Consent Divorce?
The mutual consent divorce motion is a form of affidavit that is filed in the district's family court. Following the filing of the joint petition, all the husband and wife statements are registered. Following that, the divorce case is adjourned for a six-month period.

Within six months, both husband and wife must reappear in family court to file a second petition. Without confirming mutual consent in the second motion, the divorce order would be denied.

Is it possible for one of the parties to revoke the Consent for Divorce?
If we examine the section's language, we see that nowhere does it state that the proposal must be withdrawn together by both partners and that one of the parties cannot withdraw. And, of course, as any one party withdraws, the mutual consent to end the marriage that they had contemplated is lost.

This problem of unilateral withdrawal can be seen in two major cases, Jayashree v. Ramesh and Nachhattar Singh v. Harcharan Kaur.

In Jayashree, the High Court concluded that such a petition could not be withdrawn without the agreement of both parties, after considering the terms of section 13-B and order XXIII of the Code of Civil Procedure 1908. In this situation, when the wife, who was a respondent to the joint petition, did not agree to the petition's removal or abandonment, the same was done. If the consent was given freely and without vitiation, no party may nullify the petition by removing consent. In light of this, mutual consent divorce was decreed.

The same question was raised in Nachhattar Singh, and the High Court granted the appeal in a short judgement, concluding:
The Act does not provide for the withdrawal of consent by one side. The petition can be rejected as withdrawn only if both parties that submitted it consent to do so. If both parties willingly consented to file a petition for dissolution of marriage by mutual consent and all other conditions specified in sub-section (1) of section 13B of the Act are met, no party can revoke consent.

The supreme court held in Sureshna Devi v Om Prakash that a party to a mutual consent divorce petition may unilaterally revoke their consent at any time prior to the decree being issued under this provision. The court contended that the interregnum of six to eighteen months contemplated by clause 2 of section 13-B was intended to provide parties with time and opportunity to deliberate on their step and obtain counsel from relatives and associates.

As a result, either party can withdraw jointly or separately. Indeed, if both parties change their minds and wish not to proceed with the divorce case, no party is required to cancel the application. There is no need for a secret act of removal. The same provision is immediately repealed after 18 months if the partners do not initiate divorce proceedings. Thus, when seen in this light, withdrawing is more important when one of them changes their minds.

This is shown by 13B. "On the motion of all sides... if the appeal is not dismissed in the meantime, the Court shall... enter a decree of divorce..." are the terms included in portion. Thus, what is needed is that the petition not be removed and that all parties move for the declaration. There is one more statement in favour of this assertion. The section contemplates collaboration and mutuality from the time of the original filing to the time when the court must issue the divorce decree. Before issuing a divorce order, the court must hear the "parties" to convince itself.

What is the critical time period for Consent Withdrawal?
In Jayashree v. Ramesh, the High Court held that the critical time period for consent to divorce under the provision was when the petition was filed. However, the section does not require divorce to automatically follow the joint petition. There is a waiting period (six to 18 months), and the purpose of this period is to have time and space for the parties to reflect and reconsider their step.

This is a time of reprieve. Counseling, meditation, the passing of time, and the assistance of friends and family will all be very beneficial in settling conflicts. With this in mind, lawmakers provided for a time delay rather than allowing for an instant divorce on a joint filing. In Sureshna Devi v Om Prakash, the Supreme Court states that during the transitional time (between six and eighteen months from the date of the petition's presentation), one of the parties can have a change of heart and decide not to continue with the petition.

However, in a recent Supreme Court decision 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 the joint petition for divorce by mutual consent must survive before the petition comes up for orders and a decree of divorce is finally passed, and it is only the Supreme Court that has the authority to terminate the consent." However, the Supreme Court stated unequivocally that the authority under Article 142 should be used only under exceptional cases; under normal situations, the statute's provisions must be followed.

Differences Between All Divorce Theories

Both three theories of divorce are accepted in modern Hindu law, and divorce can be achieved on the basis of any one of them. Originally, the Hindu Marriage Act, 1955, based divorce on the fault principle, enshrining nine fault grounds in Section 13(1) for either the husband or wife to seek divorce, and two fault grounds in Section 13(2) for the wife to seek divorce alone.

Certain provisions of Section 13(1) were revised in 1964 to establish Section 13(1A), acknowledging two conditions for the dissolution of the marriage. The 1976 amendment Act added two more conditions for divorce for the wife and created a special section 13B for mutual consent divorce.

Divorce Based On The Guilt Theory

The guilt or offence principle of divorce is basically a nineteenth-century philosophy in which society despised divorce as an evil, as devil's work, and thus will consent to divorce only if one of the parties committed any wrongdoing, some heinous offence against marriage. As a corollary to one party's guilt, the other was supposed to be completely innocent.

If a party commits a matrimonial offence, the aggrieved party may demand divorce from the delinquent partner. Adultery, desertion, and cruelty have always been classified as matrimonial offences. However, this list should be regarded as illustrative. Rapes, sodomy, bestiality, failure to comply with a court order to pay maintenance to the partner, and marrying an underage male are all considered matrimonial offences.

If the respondent is not found guilty of any of these offences, divorce cannot be issued against him, even if he has committed murder, dacoity, adultery, robbery, treason, piracy, black marketing, or extortion, among other offences. Thus, what matters for divorce is the harm done to the other spouse's family ties, not the harm done to any other person(s) in society. A fault divorce is typically preferred by a partner seeking vindication by establishing the other's fault. In certain jurisdictions, the partner who successfully establishes the other's liability may be awarded a larger share of the marital property or further alimony.

The crime principle presupposes two parties:
  1. A guilty person, i.e., the party who has committed one of the listed matrimonial offences; and
  2. an innocent party, which has been outraged but has played no role in the other party's wrongdoing or matrimonial offence
If the object of the divorce law was to punish the accused party, it was natural to require that the other party be innocent of the offending party's guilt. Whether the petitioner's hands are unclean, he is barred from seeking relief.

However, under the Mutual Consent doctrine, both partners would have filed a joint appeal and consented to the divorce. There is no notion of one side being guilty and the other is innocent. All couples voluntarily agreed to get a divorce and live separate lives. They must recognise that the union is no longer functioning and that it is in the best interests of all parties to dissolve the marriage. Thus, in divorce by mutual consent, both partners deliberately desired to dissolve the union, while in divorce by guilt/fault/offence principle, one spouse (innocent) desired divorce due to the other spouse's matrimonial offence, while the other spouse (at fault) did not.

Theory Of Irretrievable Breakdown

Regardless of the three remedies open to parties, restoration of conjugal rights, legal division, or divorce, the Indian judiciary is requiring irretrievable dissolution of marriage as a special basis for divorce, as courts sometimes have difficulty issuing divorce decrees due to technical flaws in current theories of divorce.

Both the Supreme Court and the Law Committee see the application of such a doctrine as a boon to parties that are reluctant to get divorce for one cause or another. Therefore, in the opinion of the Supreme Court and the Law Commission of India, it is critical to create a special and distinct land mission for the implementation of irretrievable marriage breakup as a special ground.

The irretrievable dissolution theory of divorce is the third and most contentious theory of legal jurisprudence. It is predicated on the premise that marriage is a union of two individuals motivated by love, affection, and reverence for one another. If either of these are harmed for any reason and the matrimonial relationship between the spouses deteriorates to the point that it becomes completely irreparable, that is, a point in which neither spouse can live together with the other and obtain the benefits of matrimonial relations, it is preferable to dissolve the marriage, since there is no point in extending such a dead resemblance any further.

The engagement is believed to have ended de facto. The fact if the parties to marriage have been living apart over a reasonable period of time (say two or three years), for some reasonable reason (such as cruelty, adultery, or desertion), or also for no reasonable reason (which demonstrates the parties' or even either of the parties' unwillingness to live together), and all attempts to reconcile have failed, the relationship will be presumed to be dissolved by law.

Recently, the Supreme Court in Naveen Kohli v. Neelu Kohli proposed amending the Hindu Marriage Act to allow either partner to obtain divorce on the grounds of irretrievable dissolution of marriage. Concerned that divorce could not be given in a variety of cases where relationships were practically irretrievably broken down due to the lack of an irretrievable dissolution clause, the court argued vigorously for bringing this principle into the law in light of changing circumstances.

The Court stated that the public interest requires that marital status be protected as far as possible, for as long as possible, and wherever possible. However, if a marriage has been irreparably damaged, the public interest demands acknowledgment of the reality. The judgement states that there is no suitable method of compelling a partner to restore life with the consort and that cases that cause distress should not be permitted to persist forever, since the statute has a right to properly address society's needs.

The profound logic is that in cases when there is no hope of living together again or where the marriage is irreparable, it will be pointless to maintain the marital tie. Here, the land of irreversible collapse is critical. However, it should not be forgotten that as the land is implemented, protections must be in place to ensure that no group is exploited.

Conclusion
The Hindu Marriages Act, Section 13-B, is analysed in this article. Divorce by mutual consent enables the partners to resolve their differences amicably which saves time and money. According to the provisions of this act, parties shall live apart for a period of at least one year prior to filing a joint motion for divorce. As previously stated, earlier living apart does not always imply physical separation; what is critical is that parties are not meeting marital commitments and are not cohabiting.

The second criterion is that the partners have been unable to cohabitate. The fact that both sides lodged a joint motion by mutual consent demonstrates that they have been unable to cohabitate. The only thing that matters is that consent was received openly and not by coercion, deception, or improper interference, since the very object of mutual consent is vitiated if consent is not obtained freely.

If the parties submit a joint petition for divorce that satisfies many of the necessary requirements, they are allowed six months, though not longer than eighteen months, to file a second motion, and the courts, after hearing the parties and scrutinising the petition's averments, issue a decree of divorce. The three points of contention are whether the six-month waiting period is obligatory or optional, whether parties should voluntarily revoke their consent, and whether silence at the second level constitutes withdrawal.

On the first two points, there have been conflicting rulings. Different high courts have applied varying standards in interpreting Section 13-B. Some High Courts have held that the six-month waiting period required by the provision is obligatory, while others have applied the spirit of the law rather than the legal language of the section and ruled that the period is directory if there is no possibility of reconciliation between the parties.

However, the Supreme Court, exercising its extraordinary powers under Article 142 of the Constitution, can grant a divorce decree without waiting six months. Additionally, the Supreme Court has held in the case of Sushreta Devi that the divorce petition cannot be removed unanimously. On the third point, the courts have determined that silence or failure to appear at proceedings would not constitute withdrawal of consent. Written By: Rani Banerjee
Course Instructor: Professor Neha Sinha

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