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Can a husband and wife seek divorce by Mutual Consent in Hindu law?

Yes, both the husband and wife can seek divorce by mutual consent as per Hindu laws and the provision related to divorce by mutual consent is provided under Section 13-B of the Hindu Marriage Act, 1955 and also Section 28 of the Special Marriage Act, 1954 deals with divorce by mutual consent as well as Section 10A of the Divorce Act, 1869 prescribes provision for dissolution of marriage by mutual consent.

Meaning of Divorce by Mutual consent

Divorce by mutual consent in a layman's language means a petition for divorce is filed by both the parties mutually for the dissolution of marriage. To understand the meaning properly it is necessary to know the essential ingredients required for seeking divorce by mutual consent:
  • First is that for 1 year both the parties have been living separately.
  • Second is that both the parties are not able to live together, which means there is a state of complete breakdown of marriage.
  • Third is that both the parties are mutually agreeing to separate and they have reached a compromise that both of them would be dissolving the marriage.

Living separately for divorce by mutual consent means?

As held in the case of Shreshta Devi v. Om Prakash [1] in this case it was held that 'living separately' means not living like husband and wife and it is having no inference with the place of living. Living separately means the parties have no desire to perform any kind of marital obligations, though they are living in the same roof and yet they are not living like husband and wife.

Divorce by Mutual consent obtained by force or fraud

Consent signifies that when both the parties are agreeing upon the same thing in the same sense and that consent should be freely taken without any force or fraud, undue influence, etc. If in the divorce by mutual consent, the consent of wife is obtained by fraud then it is not said to be a mutual consent. When the wife is found to be illiterate the responsibility of Court increases in respect to those cases, and the Court is specifically taking this point into consideration that consent should be freely mutually taken without any force or fraud.

Karnataka High Court in the case of Krishna Murthi Rao v. kamalashi [2] in this case it was held that for getting a decree under the Section 13-B of Hindu Marriage Act, 1955 the parties who have consented to divorce their consent should not be taken under any force or fraud or under any kind of strong influence.

If a wife wants divorce and husband does not, is it divorce by mutual consent?

No, it will not be a divorce by mutual consent because for divorce by mutual consent certain essential ingredients discussed above has to be followed. If one party is not willing to get a Divorce, the other party can even file for divorce which is known as 'contested divorce'.

To whom petition for divorce by mutual consent is presented and where the divorce petition can be filed?

By both the parties the petition for divorce has to be presented to the district court which is supported by affidavits of the both the parties seeking divorce by mutual consent. The divorce petition can be filed to the Court where the couple who are seeking divorce last lived together or to the court where the wife at present is residing or where the marriage was solemnized.

Steps involved in the divorce by mutual consent:

  1. To the district court by both the parties petition for divorce has to be presented jointly where parties have to state the facts or grounds which need to be proved for getting a decree of divorce.
  2. After filing the petition both the parties have to appear before the family Court along with their Counsels/advocates respectively. Accordingly, the inspection of the petition is done.
  3. The court if satisfied when the petition is examined then after that the Court may order the statement of the party to be recorded on oath.
  4. After this, to both the parties, to divorce by mutual consent a minimum period of 6 months is given which is known as first motion. And, from the date of presentation of divorce petition by mutual consent in the Family Court, 18 months is the maximum period to file for a second motion.
  5. After this both the parties can proceed with the final hearings.

Is the cooling off period of six months in the divorce by mutual consent can be waived off?

Yes, it can be waived off as in the recent case of Amardeep Singh v Harveen Kaur [3] in this case Supreme Court has observed that this cooling off period can be waived off if the marriage has been irretrievably broken down as well as when there is not at all chances of reconciliation and reunion. In this case both husband and wife had together filed a divorce by mutual consent and they have stated in the petition that they were living separately for many years the Court waived off the cooling off period and observed that there are very less chances of reconciliation and reunion.

By invoking Article 142 of the Constitution of India the Court observed that the waiting period of the parties can be waived off, if parties are living separately and as wife has proposed to move abroad and accordingly it will be difficult for her after 6 months to get back to India and both husband and wife have taken the decision out of their own free consent and free will so the court held that the statutory period of six months can be waived off held in Nikhil Kumar v. Rupali kumar and Aditi Wadhera [4] v. Vivek kumar Wadhera [5].

Conclusion
Mutual consent of the parties should continue till the decree for the divorce is passed. Whenever parties are giving consent for the divorce by mutual consent then there shall occur not any kind of distinction related to matters regarding custody of a child, maintenance, etc. The divorce by mutual consent becomes final when the court passes the decree of divorce by and the Court should be satisfied about the bona fides and consent of both the parties seeking divorce by mutual consent.

End-Notes:
  1. AIR 1992 SC 1904
  2. AIR 1983 Karn 235
  3. AIR 2007 SC 4417
  4. AIR 2016 SC 2163
  5. AIR 2016 SC 3840
Written By: Pooja, IMS Unison University, Dehradun

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