DIVORCE BY MUTUAL CONSENT

After the enactment of Marriage Laws (Amendment) Act, 1976, divorce can also be obtained by mutual consent of the parties to marriage. According to Section 13-B of the Act, such a petition is required to be moved by the parties to marriage on the ground that they have been living separately for a period of one year or more and they have not been able to live together and that they have mutually agreed that their marriage should be dissolved. Essential conditions of divorce by mutual consent are as follows –

1.     Both the parties have been living separately for a period of one year or more.

2.     Both the parties have not been able to live together.

3.     Both the parties have mutually agreed that their marriage should be dissolved.

If all these elements are present in a case, divorce cannot be refused. Furthermore, Section 23(1)(bb) also requires that consent must not be the result of force, fraud or undue influence. Apart from these ingredients, the parties are not required to prove anything else.

Granting relief under Section 13B : Section 13B(2) provides that in a petition for divorce on the ground of mutual consent, six months after the date of presentation of petition and not later than eighteen months after the said date, if the petition is not withdrawn by the parties, the court has to satisfy itself after hearing the parties and after necessary inquires, and grant a decree of divorce. This period of six to eighteen months was intended to give time and opportunity to parties to reflect on their moves.

In Sureshta Devi v. Om Prakash, AIR 1992 SC 1904, it was held that a party to the petition for divorce by mutual consent, can unilaterally withdraw his consent at any time till passing of the decree under this section. However in Ashok Hurra v. Rupa Bipin Zaveri, AIR 1997 SC 1266, the Supreme Court has held that Surushta Devi’s decision that ‘consent can be withdrawn at any time before decree is passed’ are too wide and requires reconsideration. It is curious to note that in this landmark decision the Supreme Court has dissolved the marriage under Section 13B of Hindu Marriage Act by exercising its power under Article 142 of the Constitution of India so as to meet the ends of justice.

In the case of Anil Kumar Jain v. Maya Jain, AIR 2010 SC 229, the Supreme Court observed that no court except the Supreme Court is competent to pass a decree under Section 13-B if one of the consenting parties withdraw his/her consent before decree is passed otherwise the consent given by the parties must be subsisting till decree is finally passed.

In Hitesh Bhatnagar v. Deepa Bhatnagar, (2011) 5 SCC 234, held that 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 following conditions are met –

1.     A second motion of both the parties is made not before six months from the date of filing of the petition as required under sub section (1) and not later than 18 months.

2.     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

3.     The petition is not withdrawn by either party at any time before passing of the decree.

Cooling off period of 6 months under Section 13B no more necessary : In the recent case of Amardeep Singh v. Harveen Kaur, 2017 SCC Online SC 1073, it has been held by the Supreme Court that the period of six months mentioned in Section 13 B (2) is not mandatory but directory, it will be open to the court to exercise discretion in cases where there is no possibility of  parties resuming cohabitation.

Author & Former Judge

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