MUTUAL CONSENT DIVORCE IN INDIA
SECTION 13B OF THE HINDU MARRIAGE ACT
“What greater thing is there for two human souls than to feel that they are joined for life – to strengthen each other in all labour, to rest on each other in all sorrow, to minister to each other in all pain, to be one with each other in silent, unspeakable memories at the moment of the last parting”.George Eliot
No individual has plan for divorce at the time of solemnization of marriage. It is the result of circumstances. Individuals should try and make possible efforts to save the marriage keeping the best interests in mind.
Divorce is the legal dissolution of marriage. Since India is a land of varied religious communities having their own marriage laws, the divorce procedure too varies, according to the community of the couple seeking divorce. Hindus as well as Buddhists, Sikhs and Jains can seek divorce under the Hindu Marriage Act, 1955.
Hindu law permits free will, without court approval, for marriage but does not permit divorce without court orders. The divorce procedure in India is still complex and you will have to contest the divorce for several months and is a long drawn legal affair. However, the time and money required to obtain a divorce can be considerably shortened if the couple seeks divorce by mutual consent.
Any claim of a party that he has divorced his or her spouse by any other arrangement than a decree of competent court is not legal and has no legal consequences. Any person claiming to be divorced of his spouse in respect matrimonial relationship on any other arrangement than by way of a decree of competent court is not sustainable in law.
MUTUAL DIVORCE, CONDITION
Section 13B of the Hindu Marriage Act 1955 provides for divorce by mutual consent. The mandatory requirements envisaged under section 13B of the Hindu Marriage Act are that
(i) they have been living separately for a period of one year or more,
(ii) that they have not been able to live together,
(iii) that they have mutually agreed that the marriage should be dissolved and petition is presented by both parties to the marriage.
MUTUAL DIVORCE, PROCEDURE
Mutual divorce is to be filed by the couple only after they have lived apart for at least a year. The process is initiated by filing a petition, supported by affidavits by both partners, in the district court (also called family court). The presenting of the petition for divorce by mutual consent is also legally knows as the “The First Motion Petition for Mutual Consent Divorce”. The “Second Motion Petition for Mutual Consent Divorce” when the partners reappears after six months before the court. A gap of six months is provided in the statute between two motions, so as to offer the estranged couple adequate time to reconsider their decision of dissolving their marriage.
Some of the important issues on which the couple should have agreed, in their petition for divorce by mutual consent are
(i) Custody of child;
(ii) Alimony (lump sum maintenance to be decided between parties);
(iii) Returns of items (dowry, streedhan, etc); and
(iv) Litigation expenses.
The mutual consent divorce petition should also contain a joint statement by both the partners, that due to their irreconcilable differences, they can no longer stay together and should be granted a divorce.
The court is bound to pass a decree of divorce declaring the marriage of the parties before it to be dissolved with effect from the date of the decree, if the following conditions are met:
(a) A second motion of both the parties is made not before 6 months from the date of filing of the petition as required under sub-section (1) and not later than 18 months;
(b) After hearing the parties and making such inquiry as it thinks fit, the court is satisfied that the averments in the petition are true; and
(c) The petition is not withdrawn by either party at any time before passing the decree.
If the second motion is not made within the period of 18 months, then the court is not bound to pass a decree of divorce by mutual consent. Besides, from the language of the section, as well as the settled law, it is clear that one of the parties may withdraw their consent at any time before the passing of the decree. The most important requirement for a grant of divorce by mutual consent is free consent of both the parties. In other words, unless there is a complete agreement between husband and wife for the dissolution of the marriage and unless the court is completely satisfied, it cannot grant a decree for divorce by mutual consent, as held by the apex court in judgement Hitesh Bhatnagar V Deepa Bhatnagar reported in AIR 2011 SC 1637.
In a mutual consent divorce petition, the marriage between the parties cannot be dissolved only on the averments made by one of the parties that as the marriage between them has broken down, no useful purpose would be served to keep it alive. There may be cases where, on facts, it is found that as the marriage has become dead on account of contributory acts of commission and omission of the parties, no useful purpose would be served by keeping such marriage alive. The apex court in Savitri Pandey V Prem Chandra Pandey reported in (2002) 2 SCC 73 further observed the sanctity of marriage cannot be left at the whims of one of the annoying spouses.
Not all estranged couples agree on the desirability, grounds or the conditions of divorce. In such cases, one party files for divorce in the court, but the other contests it. This forms the case for the filing of a contested divorce.