How to file a divorce petition under Section 13B of the Hindu Marriage Act, 1955
Author: Kunwarbir Singh lohat
Divorce as an establishment has been allowed in most countries for certain causes. It has never been intended to produce a substitute to the virginal family, but merely to mollify hardships where, for special reasons, the continuance of a marriage seems to be unendurable. Divorce has always been appreciated and doomed alternately as a remedy for matrimonial ills. It is evident that allowing statutory divorce for Hindus created new pitfalls for Hindu women in particular. However, the reformative energies of the 1950s were not at all spent when it came to Hindu divorce law. While the abolition of polygamy was smugly celebrated as a fait accompli, growing dissatisfaction with the piecemeal and restrictive nature of Hindu divorce law became a huge source of irritation and frustration. Minattur (1980: 169) stated that “in spite of the provisions for divorce in the Act of 1955, it is not often that recourse is had to them; this is because Hindu social values, in general, are opposed to the concept of divorce. Srivastava (1978: 49-84) also points out the abuse of Hindu divorce law, observing that many suits are not genuine but involve ‘ vengeance’ for the sake of false prestige and honor or for artificially created family troubles and extramarital considerations. The result of the efforts to update and modernize Hindu divorce law is found in the Marriage Laws( Amendment) Act, 1976. This was a complex reform measure with a multiple agenda, focused not only on providing extra grounds for divorce among Hindus but also an attempt to harmonize laws like the Special Marriage Act and Hindu Marriage Act. The 1976 Act added Section 13- B to the old provisions of the HMA to allow also petitions for divorce by mutual consent, thus reflecting a move towards recognition of the breakdown principle.
The conditions or the essential prerequisites required under section 13-B of the HMA are as follows-
1). Husband and wife both need to have been living separately for a period of one year or more.
2). That they are unable to live together or it has become unbearable to live a peaceful life.
3). And that both husband and wife have mutually agreed without any coercion that the marriage has totally collapsed. Hence marriage should be dissolved. Under these circumstances, a Divorce by Mutual consent can be filed.
As per the Indian Legal system, a divorce procedure cardinally begins with the filing of a divorce petition.
Where to file a divorce petition
1. The court can be one where couples seeking divorce last lived.
2. The court can be one where the marriage was solemnized as per the HMA, 1955
3. The court can be one where the wife is residing as of present.
Procedure that is to be followed for filling the divorce petition
Step1: Firstly, a petition for disintegration of marriage for a order of divorce is to be presented to the family court by both the spouses on the ground stating that they have not been able to live together and have reciprocally agreed to de front the marriage or they have been living separately for a period of one year or more.
Step 2: Appearing before Court and inquiry of the petition
Both parties will have to appear before the family court after the filing of the petition.
The parties would present their respective advocates
The court would gravely examine the petition along with all the documents presented in the court.
The court may even attempt to bring rapprochement between the spouses, however, if this is not possible, the matter proceeds for further follow-ups.
Step 3: Passing orders for a recording of statements on oath or testimonies.
After the petition is investigated by the court and it satisfies, it may order the party’s statements to be recorded as their testimonies.
Step 4: First Motion is preceded and a period of 6 months is given before the Second Motion
After this, a six months period is given to both the parties to a divorce, before they can file the second motion or motions.
The maximum period to file for a second motion is 18 months from the date of presentation of the divorce petition in the family court. Now here lies the controversy between the decisions given by the courts of varied nature. The question of cardinal importance is whether the waiting period is mandatory. A reference may be made to a few cases on the point which indicates that the courts are inclined to dispense with these periods if the circumstances so demand. In Re Gandhi Venkata Chitti Abbai, criminal proceedings under section 498A of the IPC and maintenance proceedings under section 125 of CrPC were already pending. On the intervention of the village elders, the parties agreed to obtain a divorce by mutual consent. But the wife demanded from the court to waive off the 6 months period and her plea was listened to by the SC and said that “It will not serve any purpose to perpetuate the agony for the six months”. Likewise, in Haresh Kumar Premshankar v Harshaben Chhotulal, the parties had been residing separately for over 17 years and in the course of divorce proceedings filed by the husband, the parties agreed for the divorce under the said section and the SC waived the period. In Chiranjit Singh Mann v NeelamMann, the court held that the minimum waiting period of 6 months is mandatory and cannot be waived on the grounds that the parties have already litigated for 6 months past.
Whether consent can be unilaterally withdrawn
On this issue, there have been conflicting interpretations by the courts. The majority of the High Courts were of the view that such consent can be rescinded and unilaterally withdrawn before the second joint motion. In another view it was held that once given, it was not open for any party to withdraw the same. In view of Sureshta Devi v Om Prakash, the SC held that the consent given is not irrevocable and may be withdrawn by any party at any time before the decree.
Analysis of the landmark judgment given by SC
In the context of the unilateral withdrawal, the SC judgment in Ashok Hurra v Rupa Bipin Zaveri needs an exceptional mention not only because it has come from a 2 judge bench of the Highest Court but also because of the eccentric interpretation of Section 13-B. The court, in this case, granted a decree of divorce on the ground of mutual consent in favor of a husband who had entered into a bigamous marriage pending divorce proceedings under section 13-B, notwithstanding the fact that the wife had withdrawn her consent to divorce. After about 19 months of the filing of the petition, the wife withdrew her consent. The husband objected and contended she had no right to withdraw after 18 months and he should be granted divorce. The trial court refused the husband’s contention but the single-judge bench of the Gujarat High Court accepted his contention but that too got overruled by the division bench. But after the appeal to the SC by the husband, the apex court granted him divorce by exercising jurisdiction under Article 142 on the basis of the following reasons-
a). the marriage had irretrievably broken down and there was no point in prolonging the agony;
b). there was a long delay in the disposal of the matter;
c). the wife had not withdrawn the petition within a period of 18 months;
d). the husband has married again and had got a child from the second bigamous marriage
The court took note of the cumulative effect of various facts and came to the conclusion that the marriage was dead emotionally. The judgment raises various legal questions. Can a decree of dissolution of marriage be passed under section 13-B, despite one of the parties withdrawing the consent? Would it make any difference whether consent is withdrawn within a period of 18 months, or after this period? With due respect to the court while expediency might have demanded that the marriage be dissolved since there was no possibility of the spouses living happily together, yet it would be stretching the provision beyond rational limits to hold that a consent decree can be passed in order to do ‘complete justice’ even after the consent has been explicitly withdrawn by one party. The effect of non- action within 18 months should logically be that the original application should lapse and should the parties wish to seek relief at a later stage, they would have to apply afresh. By no stretch of logical interpretation can non- withdrawal within 18 months mean implied consent to the divorce. The idea of providing a waiting period is simple to give opportunities to the party for second thoughts.
Step 5: Second Motion and Hearing of the petition
Once the parties have analyzed and decided to go further with the proceedings and appear for the second motion, they can proceed with the final hearings.
This includes parties appearing and recording their testimonies before the Family Court.
Step 6: Decree of Divorce:
In a mutual consent divorce, both parties must have given consent and there shall not be any differences or skirmishes left in the matters related to contentions regarding alimony, custody of a child, maintenance, etc.
1). AIR 1999 Andh Pra 91
2). (1999) AIHC 4412 (Guj.)
3). AIR 2006 P&H 201
4). AIR 1992 SC 1904
5). AIR 1997 SC 1266