Divorce by mutual consent

DIVORCE BY MUTUAL CONSENT

Author: Mr. Badal Khurana, JIMS School of Law

Divorce

“An Official or Legal Process To End A Marriage”

WHAT DO WE UNDERSTAND BY DIVORCE BY MUTUAL CONSENT?

A method through which both the parties agree and seek a peaceful separation. Under Section 13-B of the Hindu Marriage Act, 1955[1], the parties can seek divorce by mutual consent by filing a petition before the court.

Mutual Consent Divorce is a facile and one of the simplest ways of coming out of a marriage and dissolving it legally. An important requirement is the mutual consent of the husband & wife. If any of the spouses don’t give their consent they cannot be granted the divorce under mutual consent.

While getting mutual consent divorce husband and wife must reach consensus on certain things like alimony or maintenance issues and child custody. As per law, there is no specific limit related to maintenance. It could be very high and could be very low as well. It depends upon the financial status of both husband and wife and other aspects. Child custody can be worked out effectively between husband and wife by sharing the responsibility between themselves or one spouse looking after the children depending upon the circumstances.

CONDITIONS

As per the Hindu Marriage Act, 1955, the divorce is required to be filed by both the spouses jointly and has to meet three basic requirements. 

• Parties should have lived separately for a year or more before filing the application
• Parties should not have been able to live together
• Parties should mutually agree that the marriage is to be dissolved.

So, we can say that the parties should intend to dissolve the marriage and they are required to wait for at least one year from the date of marriage. They also 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.

WHERE THE DIVORCE PETITION BY MUTUAL CONSENT SHOULD BE FILED?

Divorce petition by mutual consent should be filed in the family court of the district where both the husband and wife lived together i.e. their matrimonial home.

PROCEDURE OF FILING THE DIVORCE PETITION BY MUTUAL CONSENT IN THE COURT

The procedure of mutual divorce in India generally begins with the filing of a petition as has been given under Section 13B of the Hindu Marriage Act. The following are the important steps:

• First Step – Filing of a joint petition in the respective family court. This joint petition should be signed by both parties. The divorce petition should 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. This statement should also have the agreement to split the assets, custody of children, etc.
• Second Step – The next step of the procedure is the appearance of both the parties to the divorce in the family court after the petition has been filed. The court fixes the date and the parties appear along with their counsels.
• Third Step – The court thereafter examines the petition and the documents filed by the parties. When and if the court is satisfied, it orders for the recording of statements of the parties on oath. In some cases, the court attempts to bring about reconciliation between the parties. When there is a failure to reconcile the parties, the divorce matter proceeds.
• Fourth Step -After the statements of the parties have been recorded on oath, an order on the first motion is passed by the court. After this, a 6 month period is given to the parties, after which the parties are required to file the second motion. This has to be filed within a period of 18 months from the date of the filing of the petition for the first motion.
• Fifth Step –After 6 months of the first motion or by the end of the reconciliation period, if both parties still don’t agree to come together, then the parties may appear for the second motion for the final hearing. This also involves the parties appearing and recording of statements before the court.

Note – In a recent judgment, the Supreme Court has categorically stated that the six months period is not mandatory and can be waived off depending upon the discretion of the court. If the second motion is not made within the period of 18 months, then the court will not pass the decree of the divorce. Besides, according to 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.

• Sixth and Final Step – The most important requirement for a grant of divorce by mutual consent is the free consent of both parties. In other words, unless there is the complete agreement between the husband and the wife for the dissolution of the marriage and unless the court is completely satisfied, it cannot grant a decree for divorce by mutual consent. Upon the basis of the statements as recorded by the parties and upon the basis of the particular facts and circumstances of the cases, the court gives the appropriate orders and dissolves the marriage. The court then passes the decree of divorce and then the divorce becomes final.

CASES DEALING CONSENSUAL DIVORCE

Ajit Shashikant Mhetre v. Leena Ajit Mhetre[2], Bombay High Court (HC) recently held that consent of a spouse for divorce by mutual consent shall be genuine and must continue till the date divorce is granted.

• Sureshta Devi v. Om Prakash[3], Supreme Court opined that the expression ‘living separately’ connotes not living like husband and wife. It has no reference to the place of living. The parties may live under the same roof and yet they may not be living as husband and wife. The parties should have no desire to perform marital obligations.
• Shikha Bhatia vs. Gaurav Bhatia & Ors.[4], Delhi High Court had opined that a spouse, who gives an undertaking to the court to abide by the consent given in the First motion for dissolution of marriage under Section 13B (1) of the Act and for moving a Second motion petition, cannot be permitted to resile from such an undertaking on the basis of an agreement arrived at between the parties and any attempt to resile therefrom would amount to a breach of the undertaking accepted by the court and therefore, attract contempt proceedings.
• Amardeep Singh v. Harveen Kaur[5], Supreme Court ruled that the period of interregnum or cooling off period of 6-18 months provided under Section 13B(2) of the Hindu Marriage Act, 1955  is not mandatory but a directory provision and can be waived off under certain circumstances.
• Baljeet Kaur v. Harjeet Kaur[6], High Court said that the manadatory period of six months under section 13B of HMA,1955 is discretionary in nature and can be waived off  if there is no possibility of parties in resuming cohabitation and reconciliation.
• Praveen Singh Ramakant Bhadauriya v. Neelam Praveen Singh Bhadauriya[7], SC told the parties to comply with the terms of compromise or else be ready to face the charge of contempt of court.
• Ganesh v. Sudhirkumar Shrivastava & ors.[8], SC held that a mother cannot give up the rights which vest in the daughter as maintenance and other issues are concerned, during divorce by mutual consent.

IMPORTANT

In another case where Kerala High Court opined that a liberal approach should be adopted while dealing with divorce pleas relating to mutual divorce.

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[1]https://indiankanoon.org/doc/439618/

[2]2019 SCC OnLine Bom 1087

[3]1992 AIR 1904, 1991 SCR (1) 274

[4]2011 SCC OnLine Del 1014

[5] 2017 SCC OnLine SC 1073

[6] 2018 SCC OnLine MP 999

[7]2019 SCC OnLine SC 644

[8]https://indiankanoon.org/doc/9152746/