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
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.
Methodology Of Research
- To ascertain the importance of using mutual consent as a basis for
- 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?
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
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.
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
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
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
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
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
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.
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
, 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
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:
- A guilty person, i.e., the party who has committed one of the listed
matrimonial offences; and
- an innocent party, which has been outraged but has played no role in the
other party's wrongdoing or matrimonial offence
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
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.
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
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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