Divorce by Mutual Consent & Wavier of its statuary Period
What Is Divorce by Mutual Consent?
Under Section 13-B of the Hindu Marriage Act, 1955, the parties can seek divorce by mutual consent by filing a petition before the civil court/family court. Mutual Consent means that both the parties’ husband & wife agree for peaceful separation, once they have decided not to continue with the marriage.
Requirements of Divorce with Mutual Consent:
Persons seeking divorce by mutual consent shall have to fulfil the requirements mentioned under Hindu Marriage Act 1955 such as:
• The parties must have to live separately since at least one year,
• The parties are unable to live together, and
• Both the parties must have agreed to dissolve the marriage.
When can the divorce by mutual consent be filed?
The parties intending to dissolve marriage are required to wait for at least one year from the date of marriage.
They have to show that they have been living separately for a period of one year or more before the presentation of the petition for divorce and that during this period of separation they have not been able to live together as husband and wife.
Section 13B in The Hindu Marriage Act, 1955
Section 13 of the Hindu Marriage Act discusses the provision of divorce. It states that the husband or wife, any of them, can present a petition before the Court to dissolve their marriage.
Section 13-B of HMA contemplates two stages.
• The first stage is of Section 13-B(1) that lays down the essential requirements to be fulfilled by the parties as detailed below:
(i) The petition for divorce must be presented to the District Court;
(ii) The said petition must be presented jointly, by both the parties to a marriage whether such a marriage was solemnised before or after the commencement of the Marriage Laws (Amendment) Act, 1976;
(iii) The parties have been living separately for a period of one year;
(iv) The parties have not been able to live together; and
(v) The parties mutually agreed that the marriage should be dissolved.
• The second stage is of Section 13-B(2) that relates to the manner in which the court exercises its jurisdiction, provides that both the parties must again appear in the Second Motion before the court. The parties are also required to make a joint motion not less than six months after the date of presentation of the First Motion and not later than 18 months after the said date. The period of waiting ranging from six to eighteen months is intended to give an opportunity to the parties to reflect/renege and if one of the parties does not wish to proceed ahead with the divorce during this period, then divorce cannot be granted.
Where to file the divorce petition?
In the family court of the city / district where both the partners lived together for the last time, which was their matrimonial home. As per latest law petition can also be filed where the girl is living at the time of filing the petition.
How to file divorce petition by mutual consent? What happens in the court?
The divorce petition is in the form of affidavit, which is to be submitted to the family court. After the filing of the petition and recording the statement of both the parties, the court generally adjourns the matter for a period of 6 months. This process is formed as filing of first motion.
After six months the parties have to present themselves again in the court for making a second motion confirming the mutual consent filed earlier. It is only after this second motion that a decree of the divorce is granted by the court.
Can any one party withdraw the mutual consent petition after filing in the court? What will happen by that?
During this period of 6 months when the petition is pending in the court, any of the partner is fully entitled to withdraw the mutual consent by filing an application before the court stating that he/she does not wish to seek divorce by mutual consent, and he/she doesn’t agree for dissolution of the marriage.
In such circumstances, the court grants no divorce decree.
What can the other partner do under such circumstances?
There is no option available to the other party to such circumstances except to file a normal petition for divorce under the provisions of the Section 13 of the Hindu Marriage Act, 1950.
In such a situation divorce can be granted only on certain specified grounds like cruelty; desertion; voluntary sexual inter-course with another person; the other spouse being of unsound mind; conversion of religion by the other spouse; Leprosy; venereal disease; a spouse having renounced the world or being missing for a period of more than 7 years.
For that purpose a fresh petition has to be filed by either partner against the spouse and contest that in the court.
What is the cooling-off period?
In cases of divorce by mutual consent, Section 13B(2) of the Hindu Marriage Act, 1955 prescribes a 6 month “cool off” or waiting period after the filing of the divorce petition before the matter proceeds, in order to give the couple one last chance at reconciliation.
Can the Cooling Period be Waived Off?
The Supreme Court has recently waived off the mandatory cooling period of 6 months before divorce, provisioned earlier in the Hindu Marriage Act of 1955. Henceforth, a trial court can dispense with this period if there is no possibility of cohabitation between the estranged couple.
Case Ref: In the case of Amardeep Singh v Harveen Kaur, the Hon’ble Supreme Court held that, in the case of mutual divorce, the minimum cooling period of 6 months may be waived. Section 13B(1) concerns the Court’s jurisdiction and deals with the petition ‘s sustainability so that it cannot be abolished. Section 13B(2), though, is administrative and should be repealed after having examined the details and conditions in each situation where there is a little possibility of reconciliation. The usage of Article 142, which was historically used by the Courts to suspend the time of situations of exceptional circumstances, is not mandatory. In Amardeep’s case, the court remarked that,
“In order to waive off the statutory waiting period of 6 months under Section 13B (2), the court needs to consider the following before making a decision: The statutory period of six months specified in Section 13B(2), in addition to the statutory period of one year under Section 13B(1) of separation of parties is already over before the first motion itself; All efforts for mediation/conciliation including efforts in terms of Order XXXII A Rule 3 CPC/Section 23(2) of the Act/Section 9 of the Family Courts Act to reunite the parties have failed and there is no likelihood of success in that direction by any further efforts; the parties have genuinely settled their differences including alimony, custody of a child or any other pending issues between the parties; the waiting period will only prolong their agony.” In these situations, one week after the first petition, the waiver application can be submitted, providing reasons for the waiver request. The Court may exercise its control regarding the second-period waiver.
Can the spouse consent for remarriage without getting divorce from existing partner?
Remarriage without getting divorce is a punishable offence with seven years of imprisonment under the Indian Penal Code Section- 494 IPC
If either of the spouses is not heard for a long time, should the divorce be applied?
If there is proof of the absence of spouse without any information to the other spouse about his whereabouts for a continuous seven years period, a petition should be filed in this regard in the court.
When the divorced persons can remarry?
Depending on the nature of decree, after the expiry of three months from the date of decree if no notice of appeal is received by the person remarrying from the other person. However, soon after the grant of decree there is no bar to marry.
How much time does the whole process take from filing the mutual consent petition in the court till the passing of the decree (judgment) by the court?
It takes from six months to one year from the date of filing of the petition. It varies from case to case & place to place.
Important case laws
In the case of Suman v. Surendra Kumar, the High Court of Rajasthan addressed this question for the purpose of the interregnum period which is intended to give the partner time and opportunity to reflect on their step. The partners or one of them may have second thoughts in this interregnum period to change their minds about the dissolution of marriage.
In the Sureshta Devi v. Om Prakash case, the Supreme Court of India held that the phrase ‘living separately’ connotes not living as husband and wife. It has no reference to where to live. The partners may live under the same roof and still may not live as husbands and wives. The partners should not wish to fulfill marital obligations.
In the Shikha Bhatia case vs Gaurav Bhatia & Ors case and in Avneesh Sood vs. Tithi Sood, the courts held that a partner who undertakes to comply with the consent given in the first motion for the dissolution of marriage pursuant to Section 13B(1) of the Act and for filing a second motion could not be allowed to withdraw from such an undertaking subject to an agreement reached between the partners and any effort to withdraw from such an undertaking. For a particular scenario i.e. Rajiv Chhikara vs. Sandhya Mathu, Delhi High Court Division Bench ruled that resiling from mediation is mental cruelty. The Court noted in the case that the partner had lived apart since 2009 and that their relationship was beyond repair. Therefore, under these situations, one partner demands that the marital bond be maintained and the same would be as putting the partner in an extreme mental abuse situation.
In the Sureshta Devi vs. Om Prakash case, the Supreme Court of India ruled that mutual consent is a sine qua non for passing a divorce decree and the said agreement must be binding and subsist until a final divorce decree is issued.
In the case of Dinesh Gulati v. Ranjana Gulati, where the appellant ‘s husband had recourse to contempt proceedings against the respondent/wife on a petition that the wife did not comply with the spouse, given a reciprocal agreement reported before the Family Court to break their union. Therefore, suo moto contempt proceedings against the spouse were launched by the learned Family Court for failing to comply with the consent decree. The Division Bench held that such an order to initiate suo moto contempt proceedings neglects the mutuality aspect provided for in Section 13B of the Act and once the partners were unable or unwilling to proceed with the consensual divorce, then the only recourse was to restore the original petition for divorce.
Another landmark judgment includes Smt. Sureshta Devi vs Om Prakash. In this case, the question that appeared before the Supreme Court of India was whether, at any period until a divorce decree is signed, it was open to one of the partners to revoke the consent given to the petition filed under Section 13B of the Act? The Supreme Court noted the divergent views of various High Courts. The Bombay High Court, Delhi High Court, and Madhya Pradesh High Court held that the critical time for divorce consent under Section 13B of the Act was when the first petition was filed and if consent was given willingly, no party could revoke the consent. On the other side, the Kerala High Court, Punjab, and Haryana High Court and Rajasthan High Court held that removing the consent granted to the petition at any period until the court passes a divorce decree is available to one of the partners. While reading Section 13B(2) of the Act and examining the divergent views held by the various High Courts, the Supreme Court accepted the views of the High Courts of Kerala, Punjab & Haryana and Rajasthan on the definition of Section 13B(2) of the Act.
The judgment in the case of Sureshta Devi was upheld in the case of Smruti Pahariya by a three-Judge Bench of the Supreme Court of India, wherein the Apex Court claimed that it is only on the continued reciprocal consent of the partners that a divorce decree can be issued by the court under Section 13-B of the said Act. Unless the motion for divorce is not properly dismissed and is left open, the court has a constitutional duty to consider the partners and ascertain their agreement on the day for which the court issues the decree. The court must be satisfied that there is mutual consent between the partners to certain tangible materials that demonstrably reveal such consent.
In the case of Smruti Pahariya vs. Sanjay Pahariya, the Apex Court held that agreement can not be inferred by the absence of one partner in court at the end of 6 months cooling off time in the petition for mutual consent to divorce. It was also held that courts can not infer a partner ‘s consent solely because both partners are signatories to the first motion pursuant to Section 13B of the Act. The honorable court continues under a duty to convince itself whether the consent given by the partners is a legitimate one before issuing a divorce decree.
In the cases of Shikha Bhatia case vs Gaurav Bhatia & Ors. and Avneesh Sood Vs. Tithi Sood, the courts held that a partner, who undertakes to comply with the consent granted in the First motion to sever marriage pursuant to Section 13B(1) of the Act and to transfer a second motion petition, cannot be permitted to revoke such an undertaking pursuant to an arrangement.
In Hirabai Bharucha vs. Pirojshah Bharucha, the High Court held that the courts had to make every effort to maintain the institution of marriage. That if an arrangement between the partners specifying the terms of settlement runs counter to public policy, then it must be regarded as void ab initio and in fact unenforceable and, in those cases, it cannot be recourse to contempt proceedings.
In the case, Mr. Prakash Alumal Kalandari vs. Mrs. Jahnavi Prakash Kalandari, the Bombay High Court ruled that where a petition is submitted for divorce through joint consent under Section 13B of the Act, the Court will convince itself that the consent granted by the partners persists until the date of the issuance of the divorce decree. And if one partner voluntarily withdraws its support, in view of the provision of Section 13B of the Act, the Court does not have the power to grant a divorce decree by mutual consent.
It was also established that one side cannot be permitted to arbitrarily revoke the consent until the declaration is signed because the other side had already behaved on the provisions of the consent either entirely or in part to its disadvantage. In other terms, the Court would have to be persuaded that: I there am adequate, reasonable and equal cause to require the party to revoke its consent, or the party must be required to agree and reprove; (ii) the other party does not experience permanent discrimination as a consequence of withdrawal of the consent. If this twin requirement is not met, the Court should be reluctant to entertain the prayer so that the party can unilaterally withdraw its/her.
“Mutual Consent divorce is the stage where the partners dissolve their relationship on their own.”
Divorce is a word which people always take in a negative sense. Even the Hindu Marriage Act, 1955 considers divorce as the last resort. The judges do not pronounce the decree of divorce so easily but instead, they try to solve the matter. In society, whenever a marriage gets a divorce, we only think about the suffering of the children, but sometimes breaking the broken relationship and living with dignity is much more significant in one’s life However, divorce by mutual consent is not new to India and the past studies show that there is an increase in the number of divorce cases through mutual consent. Divorce through mutual consent is the best way to end the marriage peacefully and move on in life keeping in mind about the future impact.
Ms. Sonali Gaur
Associate Aura & Co.