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CONSENT THEORY OF DIVORCE

A project submitted in partial fulfilment of the course Family Law, Semester – III
during the Academic Year 2017 – 18.

Submitted by

Sonu Shubham, 1651

BBA.LLB

Submitted to

Dr. Shaiwal Satyarthi

October 2017

Chanakya National Law University

Nyaya Nagar, Mithapur

800001, Patna
ACKNOWLEDGMENT

I am feeling highly elated to work on under the guidance of my Property law


faculty. I am very grateful to him for the exemplary guidance. His assignment of such
a relevant topic made me work towards knowing the subject with a great interest and
enthusiasm.
I would like to enlighten my readers through this topic and I hope I have tried my
best to bring more luminosity to this topic. I am overwhelmed in all humbleness
and gratefulness to acknowledge from the bottom of my heart to all those who have
helped me to put these ideas, well above the level of simplicity and into something
concrete effectively and moreover on time.
I also want to thank all of my friends, without whose cooperation this project
was not possible. Apart from all these, I want to give special thanks to the librarian
of my university who made every relevant materials regarding to my topic
available to me at the time of my busy research work and gave me assistance.
I owe the present accomplishment of my project to my friends, who helped me
immensely with sources of research materials throughout the project and without
whom I couldn’t have completed it in the present way. I would also like to thank the
library staff for working long hours to facilitate us with required materials going a
long way in quenching our thirst for education. I would also like to extend my
gratitude to my parents and all those unseen hands who helped me out at every stage
of my project.

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Contents
INTRODUCTION : 4
OBJECTIVE OF THE STUDY : 6
HYPOTHESIS : 6
RESEARCH METHODOLOGY : 6
SOURCES OF DATA : 6
SCOPE OF THE STUDY : 6
DIVORCE 7
CONSENT THEORY OF DIVORCE 9
DIVORCE BY CONSENT UNDER MUSLIM LAW 16
MODES OF DIVORCE: 17
DIVORCE UNDER HINDU LAW 21
SECTION 13B IN THE HINDU MARRIAGE ACT, 1955 21
27 [ 13B DIVORCE BY MUTUAL CONSENT. 21
REQUIREMENTS OF DIVORCE BY MUTUAL CONSENT : 23
DIVORCE UNDER SPECIAL MARRIAGE ACT 25
CONCLUSION 27
BIBLIOGRAPHY 28

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INTRODUCTION :

Marriage is one of the principal tool used in expansion of family but having said that the institution
of marriage has undergone monumental changes in the last few decades. But like all good aspects,
bad aspects of a particular act too exists. One amongst all other is the process of seperation of the
spouses which is popularly and by law is called Divorce. Divorce means dissolution of marriage by a
competent authority. There are various theories of divorce such as fault theory, on the basis of which
most of the grounds of judicial separation and divorce are formulated in section 13(1) of the Hindu
Marriage Amendment Act, 1976. There are also modern theories of divorce such as Mutual Consent
on the basis of which a new ground of divorce; divorce by mutual consent has been incorporated.
This paper discusses divorce under Hindu Law and Muslim Law mainly. It analyses how the concept
was non-existent under ancient law due to the sacramental nature of marriage, but was introduced
under the Hindu Marriage Act, 1955. Consent theory of divorce is based on the consent of both
parties to the marriage. This theory is established against the guilt theory because if marriage is a
contract based upon the free volition of the parties then parties should have equal freedom to
dissolved it. However marriage is a sacramental ceremony in Hindu but due to incorporation of the
free consent in section 5 of the Hindu Marriage Act provides room for this theory. Our legislation
amended Hindu Marriage Act in 1976 and inserted a new section as 13 B which provides Divorce by
mutual consent of the parties and under Section 28 of the Special Marriage Act, 1954. The very basis
of marriage is mutual fidelity and if for any reason the parties feel that mutual fidelity can not be
continued then they should have freedom to dissolve their marriage. The main criticism of consent
theory of divorce that it will bring about chaos and will lead to hasty divorce. But it is not true
because when parties to the marriage feel that they can’t live together and it is better to end this
nuptial knot then law should provide them a chance to restart their life with new vigor.

The consent theory accepts that parties to a marriage could together decide to end the relationship.
This is the concept of "divorce by mutual consent." In the Hindu Marriage Act, the Indian Divorce
Act, the Parsi Marriage and Divorce Act and the Special Marriage Act, parties are required to apply
to the court for an order of divorce on this basis. These laws provide that the parties live apart for a
specified period of time, and also require that such application be made in two stages, before the
divorce is confirmed. Importantly, related but critical issues such as maintenance, distribution of
common properties and custody of children are expected to be decided by the parties. Islamic law too

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provides for divorce by mutual consent, but there is no additional requirement to apply to a Court for
an order of divorce.1

This is just like correction of error made by the both parties to the marriage when they realise that
they can not live together and their marriage has turned out to be bad bargain. It briefly dwells on the
grounds that are only available to a wife. The paper addresses the pros and cons of addition of
irretrievable breakdown as a ground for divorce amidst growing debate about its merits. The project
will mainly deal with the consent theory of divorce and how different personal laws deal with
consent under different circumstances of divorce.

1
Chitra Narayan.(2012, March 23). Consent and Breakdown, The Hindu, retrived from thehindu.com

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Objective of the Study :
The researcher has undertaked this study to research different laws related to Consent Theory of
Divorce in India and make an analysis about:

 The rights and duties of the parties involved


 How thier consent is important
 How much their consent weighs in the eyes of law
 Laws in force
 Competent authorities to enforce the divorce

Hypothesis :
The researcher assumes that there are one too many authorities involved with their own laws and the
parties involved are not always sure whom should they approach for any remedy in case their right is
in question. And authorities treat consent differently under different personal laws.

Research Methodology :
The researcher assumes that there are one too many authorities involved with their own laws and the
parties involved are not always sure whom should they approach for any remedy in case their right is
in question. And authorities treat consent differently under different personal laws.

Sources of Data :
Primary sources Secondary sources

Legislative provisions Books

Case laws Newspapers

Magazines

Websites

Scope of the Study :


The research will provide a stepping stone for further research. It will also be useful to the society as
the readers will come to know that how the provision is being used today, sometimes to protect and
sometimes to harass.

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DIVORCE
All over the civilized world, marriage is a very important social institution. Whether considered as a
sacrament or a contract marriage gives rise to status.2 On the other hand Divorce is dissolution of this
marriage and hence it is no more a sacrament. A divorce is a legal dissolution of marriage. A divorce
decree establishes the new relations between the parties, including their duties and obligations
relating to property that they own, support responsibilities of either or both of them, and provisions
for any children.When a marriage breaks up, divorce law provides legal solutions for issues that the
Husband and Wife are unable to resolve through mutual cooperation. Historically, the most
important question in a divorce case was whether the court should grant a divorce. When a divorce
was granted, the resolution of continuing obligations was simple: The wife was awarded custody of
any children, and the husband was required to support the wife and children.

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. All Hindus as well
as Buddhists, Sikhs and Jains can seek divorce under the Hindu Marriage Act 1955. The Muslim,
Christian and Parsi communities, on the other hand, have their own laws governing marriage and
divorce. Spouses belonging to different communities and castes can seek divorce under the Special
Marriage Act, 1956. There is also the Foreign Marriage Act 1969, governing divorce laws in
marriages where either partner belongs to another nationality.

With the advancement of time and social awareness, several acts have been passed by the
government to make the present day divorce procedure in India more progressive with respect to
gender affairs and related sensitive issues. There are two aspects on which Husband & Wife have to
reach to consensus. One is the alimony or maintenance issues. As per Law there is no minimum or
maximum limit of maintenance. It could be any figure or no figure. Next important consideration is
the Child Custody. This can also be worked out effectively between the parties. Child Custody in
Mutual Consent Divorce can be shared or joint or exclusive depending upon the understanding of the
spouses.

Divorce laws in India are broadly categorized into ‘Divorce by Mutual Consent’, ‘Contested
Divorce’, ‘Void Marriages’, here is a detailed overview about each of them. Under Section 13-B of
the Hindu Marriage Act, 1955, the parties can seek divorce by mutual consent by filing a petition
before the court, and as far as Muslim Marriages are concerned the Dissolution of Muslim Marriage

2
Rajneesh Rajpurohit (Dr.) v. Savita, AIR 2008 Raj 119, ―the concept of marriage under the Shastric Hindu Law is a
sacrament, religious ceremony which results in a sacred and a holy union of man and wife by which the wife is
completely transplanted in the household of her husband, become a part and parcel of the body of her husband.

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Act 1939 deals with the divorce laws. Mutual consent means that both the parties agree for peaceful
separation. Mutual Consent Divorce is a simple way of coming out of the marriage and dissolve it
legally. The Dissolution of Muslim Marriages Act does not provide that the suit for divorce is to be
filed in any specific court. It can be filed in any civil court depending on how the suit is valued. The
provisions of the Code of Civil Procedure have been modified by statutes that are applicable to
matrimonial proceedings. The Law Commission of India in its 59th Report has stressed the need for
simplification of the procedure in respect of family disputes so as to enable the parties to get speedy
redressal, and in compliance of the Report of the Law Commission, certain amendments have been
brought in 1976 for the Code of Civil Procedure incorporating order 32-A which provides for a
special procedure for matrimonial matters and other family disputes. However, the courts are
continuing to deal with the family matters in a routine manner, as a regular civil dispute, and the
object of bringing about the amendments to the Code of Civil Procedure have not been achieved.
Thereby the Parliament felt necessary to enact a special law and special Code for effective settlement
of the family disputes, and thus came the enactment of Family Court Act, which was enacted in the
year 1984, bringing in its fold all family matters between husband and wife, and their children. A
family court is supposed to provide a more informal forum for settling disputes between spouses.
The judges of the family court are required to try and bring about reconciliation between the parties
and settle the dispute amicably. The judges routinely refer the parties to marriage counseling. This
does not mean that divorce or separation is not available. The judges will grant the divorce or any
other matrimonial relief sought for if reconciliation fails. The peculiarity of the family court is that it
covers all sections of people, irrespective of caste, creed and religion. The disputes which can be
entertained under various enactment are brought under the purview of the family courts, whether the
disputes are under the Hindu Marriage Act, 1955 or Special Marriage Act,1954 or under the
Christian Marriage Act, the parties have to approach the family court. Wherever a family court is
constituted, the jurisdiction of other civil court is ousted and the matters have to be brought only
before the family courts. Important requirement is the mutual consent of the husband & wife. The
researcher will be dealing with only one form of divorce and i.e., divorce by consent of the parties.

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CONSENT THEORY OF DIVORCE
According to this theory, if the husband and wife agree to part for good, they should be permitted to
get their marriage dissolved. It is they who have to live with their marriage. If for any reason they
cannot do so they must not be compelled. Compulsive cohabitation may give birth to matrimonial
delinquencies which give rise to grounds for divorce. Why should the law refuse a person a thing
which may be given to him on his degeneration when he asks for it before such degeneration?
Granting divorce before the matrimonial life is spoiled by the delinquency or degeneration of one or
both of the spouses is a positive goodness for both, for the parties to marriage and for society.
Besides saving the parties from moral degradation, this procedure for granting divorce has an
additional advantage that the parties are not forced to wash their dirty linen in public. They need not
level allegations and counter-allegations against each other and try to outwit each other for proving
that the other party is a ―sinner‘. It is feared that the grant of divorce by mutual consent will enable
a party to obtain divorce by wresting the consent of the other unwilling party by a malpractice, say;
coercion or fraud etc. there is no valid reason for this fear. Consent essentially means free consent.
Where the consent of a party is obtained by a malpractice, the affected party can ever refuse so in the
court and the ground for divorce will automatically vanish. It is also argued against this theory that
this is in a way divorce by collusion. This objection is based on a misunderstanding of the difference
between consent and collusion. Every collusion is, no doubt, by consent between the parties but
every consent between them does not mean collusion.3

Divorce by mutual consent mean that the case is not like usual ones in which one party petition
against the other for divorce and the other party resist the same. It means that both the party makes a
joint petition to the court for divorce between them. There may be a genuine desire on the part of
both to get rid of each other. When a party to marriage wants divorce, it is not necessary in the nature
of things that the other party must oppose it. The other party may be equally or rather more willing
for it. They may be sensible enough to part for good amicably.4

3
Syal v. Syal, AIR 1968 P&H 439. By keeping the wife ignorant of the proceedings under sec.9 the husband obtained a
decree for restitution of conjugal rights. She was again kept in dark about the execution proceedings. Held, the husband
was in the wrong and divorce was denied. Ahluwalia v. Ahluwalia, AIR 1962 Punj 432: The husband after getting the
decree for restitution in his favour, petitioned under section 12 (1) (c) for the annulment of marriage. His petition was
dismissed. Then he petitioned for divorce on the basis that no restitution has taken place for the statutory period after
the decree to that effect. Held, that it was impossible for the wife to comply with decree of restitution of conjugal rights
as along as the husband was proceeding with the petition for the nullity of marriage. He was, therefore, not given the
decree of divorce.
4
Dharmendra Kumar v. Usha Kumari, AIR 1977 SC 2218: This case presents an illustration of the application of the rule
of harmonious construction by the Supreme Court. In this case, the wife was granted restitution of conjugal rights
under section 9 of the Act. After two years she petitioned for divorce under section 13 (1-A) (ii) on the ground that

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Collusion on the other hand means an agreement or understanding between the parties to make the
court believe in the existence or truth of the circumstances which parties know to be none existent or
falls and the existence or truth of which is necessary for the grant of the relief claimed in the
petition.5 In a collusive proceeding, the claim put forward is false, the contest over it is unreal and
the decree prayed therein is a mere mask having the similitude of a judicial determination. It is
acquired by the parties with the object of confounding third parties. Collusive proceeding is a mere
sham.6 Thus, collusion is a strong word. It is a deceitful agreement for the purpose of defrauding
others and the court.7 If the husband and wife present a petition for divorce by mutual consent with
the actual intent and purpose of getting their marriage dissolved, it does not amount to divorce by
collusion. It will be a collusive divorce if they ask for it without meaning to divorce each other in
fact. Hence divorce by a real consent of the husband and wife is not synonymous with divorce by
collusion. The chances of collusion in the case of divorce by consent are neither more nor less than
in that of litigious divorces. It is also objected that this procedure will lead to hasty divorces. The
objections are groundless. This theory does not propound that a husband and wife have the right to
go hand in hand to the court and inform it that they wish to be divorced and the court would there
and then write down a decree for their divorce. This theory only facilitates the party who are unable
to pull on well to get divorce without litigation. But it is necessary to establish some concrete proof
of a rift between them and their desire to be untied. This checks hasty divorces by mutual consent.
Whenever divorce by mutual consent is permitted, it is provided as a pre-condition for submitting the
petition to the court that the parties to marriage must have lived separately for a considerable period,
say, a year or two. Moreover, the court does not start hearing at an early date and instead the parties
are required to come again together after a considerable time to move the court for taking a decision
on their joint petition. If they do not do so the court will not summon them. It will be deemed that
they have changed their mind. If only one of them comes, then also no decision will be taken because
the absence of the other party negates the mutuality of their consent. This proves that the divorces by
mutual consent is not so simple and short a matter. It has its own checks and time – consuming
preconditions. Now there is a welcome provision in the introduction of divorce by mutual consent

there has been no restitution of conjugal rights after the passing of a decree to that effect. The husband stated that the
wife herself refused to receive or reply to the letters written by him and did not respond to his other efforts to make
her agree to live with him. If divorce is granted to her she would get the advantage of her own wrong which is not
permitted under Section 23 (1) (a).
5
Tirukappa v. Kamalamma, AIR 1966 Mys 1..ILR 1965 Mys 211.. (1965) 1 Mys LJ 329
6
Nagubai Ammal v. B. Shamarao, AIR 1956 SC 593; Varadammal v. Ambalal J. Vyas, (1971) 1 Mad LJ 65: AIR 1971 Mad
371; Subhash Chandra v. Ganga Prasad, AIR 1967 SC 878: (1967) 1 SCR 331: (1967) 2 SCJ 159
7
Indo Allied Industries Ltd. V. Punjab National Bank Ltd., AIR 1970 All 108. See Jowitt‘s Dictionary of English Law, 1977,
2nd ed., Vol. 1st , p.373

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under the Hindu Marriage Act.8 Under the Special Marriage Act such a provision already exists.9
The protagonists of the consent theory have maintained that mutual fidelity in marriage can prevail
only when parties have the same freedom of divorce as they have of marriage. Just as an individual
may err in entering into any other transaction, he may as well err in marriage. If two parties realize
that this is so, then they should be permitted to put the marriage to an end by mutual consent. But the
drawbacks of consent theory are that either it makes divorce too easy or too difficult.10 To prevent
hasty divorces by mutual consent the law in various countries provides several safeguards.11 But
nothing can be done, if one of the parties withholds his consent, innocently or wickedly or
maliciously. Under the Special Marriage Act it was laid down that a couple may present a petition
for divorce by mutual consent on the ground that they have been living separately for a period of one
year or more, that they have not been able to live together and that they have mutually agreed to
divorce.12 On doing so, they were required to wait for one year. If, after the expiry of the period of
one year, if they move a motion that they wanted their marriage to be dissolved, then the court might
pass a decree of divorce. Now this latter period of one year has been reduced to six months. A
provision of divorce by mutual consent in this modified form has been introduced into the Hindu
Marriage Act.13 It is submitted that the latter period of six months desirable as it gives parties an
opportunity for rethinking and reconsidering. But the initial period of separation of one year is not
justified. In our Indian situation sometimes, it may not be possible to live separately— even though
parties are living together very miserably. If a married couple realizes that they are finding it difficult
to pull on together; they have tried hard to make the marriage a success, but all their efforts have
filed. It is not that they are wicked people or bad persons. They are average human beings who have,
somehow or the other, not been able to pull on together. In such a case, only alternative for them is to
get out of the matrimony. But they cannot do so. The fault theory requires that one of them (and only
one of them) should be guilty of some matrimonial offence14, then and then only the marriage can be
dissolved. Then it was thought that a divorce by mutual consent was the answer to this problem. It

8
Section 13B, Hindu Marriage Act, 1955
9
Section 28, Special Marriage Act, 1954
10
See Paras Diwan, ―Modern Hindu Law‖ (3rd ed.), p. 70-72; also if and when the irretrievable breakdown is also
included among the grounds for divorce as recommended by the Law Commission, the Hindu Law of divorce would be
one of the reasonably most liberal laws of divorce in the world.
11
See Section 23, the Hindu Marriage Act, 1955
12
Section 28, Special Marriage Act, 1954
13
Section 13B, Hindu Marriage Act, 1955
14
Only Matrimonial Offences like adultery, bigamy, cruelty, rape etc. and not criminal offence which are punishable
under Indian Penal Code, 1860

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was asserted that freedom of marriage implies freedom of divorce.15 Thus as against the guilt theory,
there has been advocated the theory of free divorce or the consent theory of divorce. The
protagonists of this theory hold the view that parries to marriage are as free to dissolve a marriage as
they are to enter it. If marriage is a contract based on the free volition of parties, the parties should
have equal freedom to dissolve it. Just as an individual may err in entering into some other
transaction, so also he or she may err in entering into a marriage. The argument may be summed up
thus: it may construe that two parties who have entered into a marriage with free consent, later on,
realize that they made a mistake, and for one reason or another, are finding it difficult to pull on
together smoothly and to live together harmoniously. It is not because they are wicked, bad or
malicious people. They are just ordinary average human beings, but it has just happened that their
marriage has turned out to be a bad bargain, and they find it impossible to continue to live together.
Should they have no right to correct their error, to cast off a burden which has become onerous,
intolerable and which is sapping the vital fluid of life and eating into its very vitals? It is not merely
their physical life, it is also their entire family life, including moral life, which is affected. If from
this situation they have no way out, they are likely to go astray, may be, willy-nilly, one is forced to
commit a matrimonial offence, may be one, out of sheer frustration, murders the other. Such an
unhappy family is a breeding ground for delinquent children. In short, continuance of such a
marriage is neither in the individual nor in the social interest. Thus, it is argued, that freedom of
marriage implies freedom of divorce, then and then only can mutual fidelity continue, can real
monogamy exist. It is stated that the very basis of marriage is mutual fidelity, and if for any reason
the parties feel that mutual fidelity cannot continue, they should have freedom to dissolve the
marriage, as only by dissolution, fidelity can be preserved. Divorce by mutual consent means that the
law recognizes the situation that has existed for some time and in effect says to the unhappy couple.
The supporters of this theory hold that the freedom of divorce will bring about more happy
marriages, and reduce the number of unhappy one. It will help both the husband and the wife to live
in harmony and consolidate the unity of the family, so that they may fully engage in their career.
Since there is freedom of divorce, both man and woman are forced to take a very serious and sincere
attitude towards marriage. Under Muslim law also, divorce by mutual consent is recognized in two
forms (i) Khul, and (ii) Mubbaraat. The word Khul literally means ―to put off. In law it means
laying down by a husband of his right and authority over his wife for an exchange.16 In Khul the
desire for divorce emanates from the wife, while in mubbaraat aversion is mutual; both parties desire

15
Section 13B, the Hindu Marriage Act, 1955; section 28, the Special Marriage Act, 1954; section 10 A, the Divorce Act,
1869; section 32 B, the Parsi Marriage and Divorce Act, 1936
16
Baillie, Digest of Mohammden Law, 38; Hedaya, 112.

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dissolution of marriage. Mubbaraat denotes the act of freeing one another mutually, and the proposal
for divorce may emanate from either spouse. But even in mubbaraat wife has to give up her dower or
part of it. The Soviet Union introduced this theory in the family law. In the People‘s Republic of
China, in most of Eastern-European countries, Belgium, Norway, Sweden, Japan, Portugal and in
some Latin American States divorce by mutual consent is recognized in one form or the other. At
home, the Special Marriage Act, 1954, and the Hindu Marriage Act, 1955 (after the amendment of
1976), the Divorce Act, 1869, the Parsi Marriage and Divorce Act, 1936 recognize divorce by
mutual consent.17 The criticism of the consent theory is two-fold:

 it makes divorce very easy, and


 it makes divorce very difficult.

It has been said that divorce by mutual consent offers a great temptation to hasty and ill-considered
divorces. More often than not, parties unnecessarily magnify their differences, discomforts and other
difficulties, which are nothing but problems of mutual adjustments, and rush to divorce court leading
to irrevocable consequences to the whole family. This criticism has been met by the law of many
countries which recognize divorce by mutual consent by providing several safeguards. In the modern
English law, the Matrimonial Causes Act, 1973, the consent theory has been accorded recognition by
laying down that if the parties have lived apart for a continuous period of at least two years,
immediately preceding the presentation of the petition, divorce may be granted by the mutual
consent of the parties. Under the Special Marriage Act, 1954 and the Hindu Marriage Act, 1955 no
petition for divorce can be ordinarily presented before a period of one year has elapsed since the
solemnization of marriage. A similar provision has been made in Parsi Marriage and Divorce Act,
1936 by the amending Act of 1988.

The other criticism of the theory is that it makes divorce very difficult. Since divorce by mutual
consent requires the consent of both the parties and if one of the parries withholds his consent,
divorce can never be obtained. It may happen that one of the parties to marriage may not give his or
her consent for divorce on account of a belief in the indissolubility of marriage, or on account of
sheer malice, bigotry or avarice, then divorce can never be obtained. Thus, it became necessary to
find an alternative to the consent theory also. But in countries like England where it was found
difficult even to replace fault theory with consent theory, much less to introduce irretrievable
breakdown of marriage theory, two modes were found to mitigate its rigor. Firstly, some countries

17
Section 13B, the Hindu Marriage Act, 1955; section 28, the Special Marriage Act, 1954; section 10 A, the Divorce Act,
1869; section 32 B, the Parsi Marriage and Divorce Act, 1936.

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went on enlarging the fault grounds of divorce so much so that ―incompatibility of temperament‖ or
―profound and lasting disruption‖ was made grounds of divorce. The second course adopted was to
give a very wide interpretation to some fault grounds. Cruelty was found to be most handy ground
which could be moulded into any shape. Some States of the United States of America went to the
extent of saying that if husband snored during the night thus disturbing the sleep of the wife, it
amounted to cruelty. Gradually, cruelty was given such a wide interpretation that it virtually
amounted to recognition of breakdown theory of divorce.18 In Gollins v. Gollins19, the wife soon
after the marriage found out that her husband was heavily indebted at the time of the marriage and
his farm was also heavily mortgaged. The husband was not in a position to provide maintenance for
her. It was she who had to lend money to her husband from time to time to pay off pressing debts.
The wife ran a guest house for elderly people: husband did not contribute anything. In short, husband
did nothing to help her; he could have obtained paid employment but did not care to get it.

The husband however, did nothing at any time to cause any physical harm to the wife. Under these
circumstances, the wife brought an action for divorce on the averment that she could not stand the
strain of his debts and that her husband had wilfully neglected to provide reasonable maintenance to
her and children. On these facts the husband was held guilty of persistent cruelty. The question again
came in Williams v. Williams20, where the wife filed an action for divorce on the ground that the
husband persistently accused her of adultery as a consequence of which her health had been injured.
The husband was a mental patient and therefore insanity was taken as a defense. Rejecting the
husband‘s plea, the House of Lords allowed the wife‘s petition. Thus, the scope of the cruelty-one of
the fault grounds-has been so much widened by judicial interpretation as to include virtually the
breakdown principle. The Matrimonial Causes Act, 1963 removed ‗collusion‘ from absolute bars
and placed it among the discretionary bars. This resulted in the acceptance of several collusive
agreements which virtually implied acceptance of divorce by mutual consent of the parties. The
provision for dissolving marriage through mutual divorce in India is included in Section 13B of the
Hindu Marriage Act by the Marriage Laws (Amendment) Act, 1976. Any marriage solemnized
before and after the Marriage Laws (Amendment) Act, 1976 is entitled to this provision. Though
several laws have been passed with the progress of time, the divorce procedure in India is still
complex and one will have to contest the divorce for several months. The Indian judicial law
believes that the extended time span might work out well for the couple to reconsider their marriage
18
V. Raveendra Reddy, ―Need for Irretrievable Breakdown of Marriage as a ground for Divorce‖ Indian Bar Review
1991 (26) at 114.
19
(1963) 2 All ER 966; 1964 AC 644; Russel v. Russel, 1897 AC 305; Dastane v. Dastane, AIR 1970 Bom 312; Shobha Rani
v. Madhukar Reddi (1988) 1 SCC 105, 108: 1988 SCC (Cri) 60: AIR 1988 SC 128
20
(1963) 2 All ER 994.

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and hence, a marriage will be saved from being dissolved forever. A marriage may be said to have
broken down when the purpose of the marriage tie is defeated or when the objects of the matrimony
cannot be fulfilled. Broadly speaking, the main objects of the marriage are twofold, viz, the
maintenance of stable sexual relationship and the protection and care of the children of the marriage.
When the life of the spouses reach such a stage that each has his or her own way, when there are
constant bickering and nagging, when there is no mutual affection and trust, it may be presumed that
the marriage has failed.21 Under such condition neither sexual fidelity is possible nor are the interests
of the children secured. In many countries the fact of separation is considered to be an indication of
the breakdown. Some countries provide certain guidelines apart from a separation period, as
indicative of the marital breakdown. There can, however, be no absolute rule and every sick marriage
may have its own peculiar reasons for being so. The entire history of the marriage has to be studied.
It is only when there is not an iota of hope that the parties will reconcile that the marriage can be
considered as irretrievably broken down. It cannot be denied that a system which permits divorce on
the fault of the other party has a number of flaws. Under the fault system of divorce, parties whose
marriage has obviously broken down are impaired to live together in law. In the absence of a
technical fault viz, the fault grounds enumerated in the divorce section, no divorce can be granted.
Similarly, when both parties are at fault – the ―clean hands theory‖ equity makes matters difficult
for the spouses. Besides, since the proof of matrimonial fault is a condition precedent for the grant of
a divorce in a fault oriented system, parties are at a virtual tug of war in the court with accusations
and counter accusations against each other.22

21
The logic behind is that what could not be mended should be ended. See, Anam Abrol, ―Irretrievable Breakdown of
Marriage as a ground of divorce‖ CULR 1988 (12) at 71.
22
Paul W. Alexander, Let‘s Get the Embattled Spouses out of the Trenches, 18 Law & Contemp. Prob. 98 at 102 (1953)

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DIVORCE BY CONSENT UNDER MUSLIM LAW

In Islam the word most commonly employed for marriage is nikah, which literally means 'sexual
intercourse'. As a legal term it denotes the situation resulting from a particular contract,entered into
by a man and a woman, by which sexual intercourse between them becomes legitimate in the eyes of
God and society. The only other mode of legitimizing this sexual relationship is by a man's
purchasing a female slave, but this is a complicated discussion that cannot concern us here. Initially
no marriage is contracted to be dissolved but in unfortunate circumstances the matrimonial contract
is broken. The Muslim world has all along considered marriage as a civil contract though has, at the
same time, recognised limited polygamy.23 One of the ways of such dissolution is by way of divorce.
Under Muslim law the divorce may take place by the act of the parties themselves or by a decree of
the court of law. However in whatever manner the divorce is effected it has not been regarded as a
rule of life. In Islam, divorce is considered as an exception to the status of marriage. The Prophet
declared that among the things which have been permitted by law, divorce is the worst. Divorce
being an evil, it must be avoided as far as possible. But in some occasions this evil becomes a
necessity, because when it is impossible for the parties to the marriage to carry on their union with
mutual affection and love then it is better to allow them to get separated than compel them to live
together in an atmosphere of hatred and disaffection. The basis of divorce in Islamic law is the
inability of the spouses to live together rather than any specific cause (or guilt of a party) on account
of which the parties cannot live together. Under Muslim law the divorce may take place by the act of
the parties themselves or by a decree of the court of law.
Firm union of the husband and wife is a necessary condition for a happy family life. Islam therefore,
insists upon the subsistence of a marriage and prescribes that breach of marriage contract should be
avoided. Initially no marriage is contracted to be dissolved but in unfortunate circumstances the
matrimonial contract is broken. One of the ways of such dissolution is by way of divorce . Under
Muslim law the divorce may take place by the act of the parties themselves or by a decree of the
court of law. However in whatever manner the divorce is effected it has not been regarded as a rule
of life. In Islam, divorce is considered as an exception to the status of marriage.
The Prophet declared that among the things which have been permitted by law, divorce is the worst .
Divorce being an evil, it must be avoided as far as possible.But in some occasions this evil becomes
a necessity, because when it is impossible for the parties to the marriage to carry on their union with
mutual affection and love then it is better to allow them to get separated than compel them to live
together in an atmosphere of hatred and disaffection. The basis of divorce in Islamic law is the
inability of the spouses to live together rather than any specific cause (or guilt of a party) on account
of which the parties cannot live together. A divorce may be either by the act of the husband or by the
act of the wife. There are several modes of divorce under the Muslim law, which will be discussed
hereafter.

23
A Muslim can have four wives simultaneously, and even when he takes a fifth or more, the marriage is not void but
merely irregular (fasid). Some Muslim countries like Turkey, have abolished polygamy, while some like Pakistan have
placed restriction on its practice. On the other hand, in countries, like India, Muslims are allowed to practice polygamy
limited to four wives.

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Modes of Divorce:
A husband may divorce his wife by repudiating the marriage without giving any reason.
Pronouncement of such words which signify his intention to disown the wife is sufficient. Generally
this done by talaaq. But he may also divorce by Ila, and Zihar which differ from talaaq only in form,
not in substance. A wife cannot divorce her husband of her own accord. She can divorce the husband
only when the husband has delegated such a right to her or under an agreement. Under an agreement
the wife may divorce her husband either by Khula or Mubarat. Before 1939, a Muslim wife had no
right to seek divorce except on the ground of false charges of adultery, insanity or impotency of the
husband. But the Dissolution of Muslim Marriages Act 1939 lays down several other grounds on the
basis of which a Muslim wife may get her divorce decree passed by the order of the court. 24

There are two categories of divorce under the Muslim law:


1.) Extra judicial divorce, and
2.) Judicial divorce
The category of extra judicial divorce can be further subdivided into three types, namely,
• By husband- talaaq, ila, and zihar.
• By wife- talaaq-i-tafweez, lian.
• By mutual agreement- khula and mubarat.
There are two forms of divorce by mutual consent, in both the woman has to part with her property.
One is the “khula” divorce and the other one is the “mubarat” form of divorce. In mubarat, the
feature is that both the parties desire divorce. Thus, the proposal may emanate from either side. In
mubarat both, the husband and the wife, are happy to get rid of each other. Among the Sunnis when
the parties to marriage enter into a mubarat all mutual rights and obligations come to an end. The
Shia law is stringent though. It requires that both the parties must bona fide find the marital
relationship to be irksome and cumbersome. Among the Sunnis no specific form is laid down, but the
Shias insist on a proper form. The Shias insist that the word mubarat should be followed by the word
talaq, otherwise no divorce would result. They also insist that the pronouncement must be in Arabic
unless the parties are incapable of pronouncing the Arabic words. Intention to dissolve the marriage
should be clearly expressed. Among both, Shias and Sunnis, mubarat is irrevocable. Other
requirements are the same as in khula and the wife must undergo the period of iddat and in both the
divorce is essentially an act of the parties, and no intervention by the court is required. They are
two forms of divorce by mutual consent but in either of them, the wife has to part with her dower or
a part of some other property. A verse in the Holy Quran runs as: “And it not lawful for you that ye
take from women out of that which ye have given them: except (in the case) when both fear that they
may not be able to keep within the limits (imposed by Allah), in that case it is no sin for either of
them if the woman ransom herself.” The word khula, in its original sense means “to draw” or “dig
up” or “to take off” such as taking off one’s clothes or garments. It is said that the spouses are like
clothes to each other and when they take khula each takes off his or her clothes, i.e., they get rid of
each other.

24
http://www.legalserviceindia.com/article/l393-Divorce-under-Muslim-Law.html

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In law it is said is said to signify an agreement between the spouses for dissolving a connubial union
in lieu of compensation paid by the wife to her husband out of her property. Although consideration
for Khula is essential, the actual release of the dower or delivery of property constituting the
consideration is not a condition precedent for the validity of the khula. Once the husband gives his
consent, it results in an irrevocable divorce. The husband has no power of cancelling the ‘khul’ on
the ground that the consideration has not been paid. The consideration can be anything, usually it is
mahr, the whole or part of it. But it may be any property though not illusory. In mubarat, the
outstanding feature is that both the parties desire divorce. Thus, the proposal may emanate from
either side. In mubarat both, the husband and the wife, are happy to get rid of each other . Among the
Sunnis when the parties to marriage enter into a mubarat all mutual rights and obligations come to an
end.
The Shia law is stringent though. It requires that both the parties must bona fide find the marital
relationship to be irksome and cumbersome. Among the Sunnis no specific form is laid down, but the
Shias insist on a proper form. The Shias insist that the word mubarat should be followed by the word
talaaq, otherwise no divorce would result. They also insist that the pronouncement must be in Arabic
unless the parties are incapable of pronouncing the Arabic words. Intention to dissolve the marriage
should be clearly expressed. Among both, Shias and Sunnis, mubarat is irrevocable. Other
requirements are the same as in khula and the wife must undergo the period of iddat and in both the
divorce is essentially an act of the parties, and no intervention by the court is required.

MUBARAT :
The literal meaning of the word Mubarat is ‘obtaining release from each other.’ It is said to take
place when the husband and wife, with mutual consent and desire, obtain release and freedom from
their married state. The offer for separation in mubarat may proceed either from the wife or from the
husband and as soon as it is accepted dissolution is complete. It takes effect as one irrevocable
divorce without the aid of the court. Under Hanafi law, mubarat is equivalent to one irrevocable
pronouncement of talaq, making it necessary for the parties to contract a fresh marriage with each
other if they wish to resume a marital relationship.25
According to the holy Quran; the basis of Mubarat is Surah – al – Baqrah26, it is given in the book,
“that there is danger in mubarat, just as with all forms of divorce, to which the parties might act
hastily, then repent, and again wish to separate. To prevent such capricious action repeatedly, a limit
is prescribed. Two divorces (with attempted reconciliation in between) are allowed. After that the
parties must definitely make up their minds, either to dissolve their union permanently or to live
together in mutual love and forbearance”.27 If the husband is the one who makes the initial offer of a
mubarat, his offer may not be retracted. It is up to the wife, then, to either accept or reject this offer.
This is primarily because this offer by the husband is deemed equivalent to an oath of repudiation,
which becomes effective immediately when the wife signifies her acceptance of the offer. On the
other hand, if the wife makes the initial offer of a mubarat, she may retract her offer at any time

25
https://arjungupta1993.wordpress.com/2015/03/22/divorce-by-mutual-consent-in-muslim-law-mubarat/#_ftn8
26
‘The Holy Quran’,Text,Translation and Commentary by Abdullah Yousaf Ali,Sh.Mohammad Ashraf Publishers &
book sellers, Surah Al-Baqrah
27
ibid

18 | P a g e
before acceptance by the husband. Since mubarat requires consent of both parties to the marriage
contract, the agreement to divorce may be voidable if either or both the parties lacked the necessary
intent or have been induced into acceptance by fraud or duress. While in the Khula divorce, the
request proceeds from the wife to be released and the husband agrees for certain consideration,
usually the mahr, in mubarat apparently both are happy at the prospect of being rid of each other. No
formal form is insisted on for mubarat by the Sunnis. The offer may come from either side. When
both the parties enter into mubarat all mutual rights and obligations come to an end.28 “So, the
second khalifa, Umar, shut up a petitioning wifein a filthy room for three days and three nights in
order to determine the extent of revulsion. On being taken out, the Khalifa enquired as to how she
had fared, and she replied, “By Allah, these three days have been the only days of peace of my life
since marriage.” The divorce was subsequently given in this case. The judge relied on the spoken
words of the wife.29 The judge decided that even where there was mutual dislike or extreme
incompatibility of temperament between husband and wife there can be mubarat, sukoon, and rehmat
in the married life (declared to be objectives of marriage by the Qur’an) with the procreation of
children.
“Incompatibility of temperaments, aversion or dislike cannot form a ground for a wife to seek
dissolution of her marriage at the hands of a Qazi or court, but is to be dealt with under the powers
possessed by the husband and the wife under Muslim law, as parties to the marriage contract”. This
case defined khula as dissolution of a marriage by agreement between the parties for a consideration
paid or to be paid by the wife to the husband. It was necessarily a case of mubarat.30

KHULA :
The word ―Khula in its original sense means ―to draw‖ or ―dig up‖ or ―to take oil‖, such as
taking off one‘s clothes or garments. By analogy it is said that spouses are like clothes to each other
and when they take ―Khula, each takes off his or her clothes, i.e., they get rid of each other. In law
it is said to signify agreement between the spouses for dissolving a connubial union in lieu of
compensation paid by the wife to her husband out of her property. It is also said as ―laying down by
husband of his right and authority, over his wife for an exchange31 According to the Fatwa-i-
Alamgir.i32
―When married parties disagree and are apprehensive that they cannot observe the bounds
prescribed by the divine law, that they cannot perform the duties imposed on them by the conjugal
relationship, the woman can release herself from the tie by giving up some property in return, in
consideration of which the husband is to give her a khula, and when they have done this, a tatak-ul-
bain would take place. A divorce by Khula is a divorce with the consent, and at the instance of the
wile, in which she gives or agrees to give a consideration to the husband -for her release from the
marriage tie. In such a case, the terms of bargain are a matter of arrangement between the husband
and wife, and the wife may, as a consideration, release her dyn-mohr and other rights, or make any
other agreement for the benefit of the husband. While in the Khula divorce, the request proceeds

28
Bhartiya V. P. “Muslim Law”, ed. 5.
29
http://heinonline.org/HOL/Page?handle=hein.journals/modlr30&div=32&g_sent=1&collection=journals
30
Mst. Sayeeda Khanam v. Muhammad Sami PLD 1952 (WP) Lah 113 (FB)
31
Hedaya, 112; Ballie, 31
32
Fatwa-i-Alamgiri I, 669.

19 | P a g e
from the wife to be released and the husband agrees for certain consideration, usually the mahr, in
mubarat apparently both are happy at the prospect of being rid of each other.
In short, khul form of divorce is one where wife makes a proposal for divorce, either because of her
dislike for her husband or for any other reason, to her husband in consideration of her agreeing to
forgo her dower or to give some property to him when the proposal is accepted by the husband, it
results in divorce.33 Although consideration for Khula is essential, the actual release of the dower or
delivery of property constituting the consideration is not a condition precedent for the validity of the
khula. Once the husband gives his consent, it results in an irrevocable divorce. The husband has no
power of cancelling the ‘khul’ on the ground that the consideration has not been paid. The
consideration can be anything, usually it is mahr, the whole or part of it. But it may be any property
though not illusory. In mubarat, the outstanding feature is that both the parties desire divorce. Thus,
the proposal may emanate from either side.

33
Buzul-ul-Raheem v. Luteefutoon-nissa, (1861) 8 MIA 379.

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DIVORCE UNDER HINDU LAW
Section 13B in The Hindu Marriage Act, 1955

27 [ 13B Divorce by mutual consent.

(1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce
may be presented to the district court by both the parties to a marriage together, whether such
marriage was solemnised before or after the commencement of the Marriage Laws (Amendment)
Act, 1976 (68 of 1976)*, on the ground that they have been living separately for a period of one year
or more, that they have not been able to live together and that they have mutually agreed that the
marriage should be dissolved.

(2) On the motion of both the parties made not earlier than six months after the date of the
presentation of the petition referred to in sub-section (1) and not later than eighteen months after the
said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after
hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnised
and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be
dissolved with effect from the date of the decree.]

(i) The period of 6 to 18 months provided in section 13B is a period of interregnum which is
intended to give time and opportunity to the parties to reflect on their move. In this transitional
period the parties or either of them may have second thoughts;34

(ii) The period of living separately for one year must be immediately preceding the presentation of
petition. 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;35

(iii) The period of six to eighteen months time is given in divorce by mutual consent as to give time
and opportunity to the parties to reflect on their move and seek advice from relations and friends.
Mutual consent should continue till the divorce decree is passed. The court should be satisfied about
the bona fides and consent of the parties. If there is no consent at the time of enquiry the court gets
no jurisdiction to make a decree for divorce. If the court is held to have the power to make a decree
solely based on the initial petition, it negates the whole idea of mutuality. There can be unilateral
withdrawal of consent. Held, that since consent of the wife was obtained by fraud and wife was not
willing to consent, there could be unilateral withdrawal, of consent;36

34
Suman v. Surendra Kumar, AIR 2003 Raj 155.
35
Sureshta Devi v. Om Prakash, AIR 1992 SC 1904.
36
Sureshta Devi v. Om Prakash, AIR 1992 SC 1904.

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The ground of divorce by mutual consent was inserted in the Hindu Marriage Act 1955 by an
amendment in 1976, by adding Section 13B.37 Section 13B of the Hindu Marriage Act.38 No specific
grounds, of divorce are recognized220 Divorce may be obtained by mutual consent, sometimes the
husband divorces his wife on some flimsy ground, sometimes he abandons her or renounces her, and
sometimes wife obtains divorce from him on some flimsy ground, or even without any. It is a
difficult task to clarify various modes of divorce. No such attempt is made here; some illustrative
cases are grouped together. It appears most Jat tribes recognize easy mode of divorce. In some Jat
tribes divorce is in writing, in some it is oral. There are only a few Jat tribes which do not recognize
divorce. Other tribes too recognize divorce.39

The felt necessities of our changing society require that there should be no insistence on the
maintenance of a marriage which has broken down and thus a marriage in which parties cannot live
together should be dissolved. A Hindu marriage cannot be dissolved by compromise or consent
except to the extent expressly permitted under section 13B of the Hindu Marriage Act, 1955.
Insertion of Section 13B in the Hindu Marriage Actwas made perhaps as a response to an
overwhelming demand in society for such a provision. A petition for dissolution of marriage by a
decree of divorce may be presented to the district court by both the parties to a marriage
together, whether such marriage was solemnized before or after the commencement of the
Marriage Laws (Amendment) Act, 1976, (68 of 1976.) on the ground that they have been living
separately for a period of one year or more, that they have not been able to live together and that
thy have mutually agreed that the marriage should be dissolved.
The unique feature of the Hindu Marriage Act, 1955215 is that it still retains custom in some matters.
One important aspect of recognition and retention of custom relates to dissolution of marriage.
Similarly, divorce under certain local enactment is also recognized.
This means that post-Act and pre-Act marriages are still dissoluble under custom or special
legislation provided such dissolution is recognized under custom or special enactment. Not merely
customary mode of divorce is still recognized but the customary forum is also recognized. In fact,
before the statutory reform of Hindu matrimonial law, divorce under Hindu law was recognized only
under custom; otherwise, Hindu marriage was regarded as indissoluble. Divorce, if custom
recognized it, was available to Hindus. So was the forum of divorce. This position is still retained. In
respect of customary divorce, neither one year‘s bar to divorce (the fair trial rule) under section 14,
nor any of the bars laid down in section 23 of the Hindu Marriage Act, 1955 are applicable. The
provisions of sections 24, 25 and 26 of the Act are also not applicable. In short, no provision, of the
Hindu Marriage Act, 1955 applies to such divorces; No petition in the court is required.
 Subject to the provisions of this Act a petition for dissolution of marriage by a decree of
divorce may be presented to the district court by both the parties to a marriage together,
whether such marriage was solemnised before or after the commencement of the Marriage
Laws (Amendment) Act, 1976, on the ground that they have been living separately for a
period of one year or more, that they have not been able to live together and that they have
mutually agreed that the marriage should be dissolved.
 On the motion of both the parties made not earlier than six months after the date of the
presentation of the petition referred to in sub section (1) and not later than eighteen months

37
Kusum, Family Law Lectures (2nd, Lexis Nexi Butterworths wadhwa, Nagpur 2007) 161
38
The Hindu Marriage Act 1955 s 13(B)
39
Gurdit v. Angrej, IR 1968 SC 142

22 | P a g e
after the said date, if the petition is not withdrawn in the meantime, the court shall, on being
satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a
marriage has been solemnized and that the averments in the petition are true, pass a decree of
divorce declaring the marriage to be dissolved with effect from the date of the decree.

However, 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. A mention must be made in the petition
that the parties have not been able to live together and have been living separately for a
period of at least one year. This period is mandatory. Therefore, no application for divorce
by mutual consent can be filed within a period of one year from the date of marriage.

Requirements of divorce by mutual consent :

The requirements which have to be met to seek divorce under Hindu Marriage Act are as follows:
 The parties have been living separately for a period of at least one year. Supreme Court
observed that expression “have not been able to live together” seems to indicate the concept
of broken down marriage so much so that there is no possibility of any reconciliation. The
parties need not establish the fact that they have not been able to live together. The very fact
that they have presented a petition by mutual consent is indicative of this fact that they have
not been able to live together.40 However, it is very imperative to determine whether consent
given by both the parties is free and not obtained by any kind of force, fraud or undue
influence.41
 They have not been able to live together, and
 They have mutually agreed that marriage should be resolved.42 After satisfying the above two
requirements and filing a joint petition for divorce by mutual consent, the parties must wait
for at least six months, usually termed as the “cooling period”. After the end of this period, if
the initial petition is not withdrawn by either of the parties or jointly, both the parties may
move court by way of joint motion within the stipulated period of 18 months from the initial
date of the filing of the joint petition. This period is given to parties to re-think their decision.
The first requirement is that the parties should be living separately for a period of at least one year
before filing the divorce petition. It is necessary to understand what does the term “living separately’
means. There have been contrasting judgements on this issue. The controversy is that since under
this section both parties have to file a joint petition for divorce how can one party unilaterally
withdraw from it. Also, one of the purposes of giving a time period of six months is to allow parties
to re-think their decision and if one of the party decides to withdraw from it, why should it not be
allowed to do so. The Court has to be satisfied that the parties cannot live together as husband-wife
and also that the petition is filed only as per the prescribed time and that both the parties have filed
the petition voluntarily with their respective free consents and not under any fraud, coercion, undue
influence or force and only after fully understanding the implication. Once the Court arrives at this
satisfaction, decree of divorce under section 13B shall be passed in favour of the parties. The

40
Sureshta Devi v Om Prakash
41
Paras Diwan, Law of Marriage & Divorce (5th, Universal Law Publishing Co., New Delhi 2008) 529
42
Paras Diwan, Law of Marriage & Divorce (5th, Universal Law Publishing Co., New Delhi 2008) 525

23 | P a g e
Supreme Court has held that mutual consent must continue till divorce decree is passed and
revocation of consent by either of the parties at any time before the decree is passed is fatal to the
proceedings [AIR 1992 SC 1904].

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DIVORCE UNDER SPECIAL MARRIAGE ACT
Consent theory was accepted in the Special Marriage Act side by side with the guilt theory.
Section 28 in The Special Marriage Act, 1954
28. Divorce by mutual consent.—
(1) Subject to the provisions of this Act and to the rules made thereunder, a petition for divorce may
be presented to the district court by both the parties together on the ground that they have been living
separately for a period of one year or more, that they have not been able to live together and that they
have mutually agreed that the marriage should be dissolved.
(2) [On the motion of both the parties made not earlier than six months after the date of the
presentation of the petition referred to in sub-section (1) and not later than eighteen months] after the
said date, if the petition is not withdrawn in the meantime, the district court shall, on being satisfied,
after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been
solemnized under this Act, and that the averments in the petition are true, pass a decree declaring the
marriage to be dissolved with effect from the date of the decree.
Under sec. 28 of the Act, which primarily deals with the provisions relating to obtaining a divorce by
mutual consent in respect of a marriage solemnized and/or registered under the Act, a petition for
divorce by mutual consent may be presented to the District Court. A few key points to be considered
while seeking a divorce by mutual consent are as follows:

1. A petition for divorce must be presented to the District Court by both parties together.
2. The petition must be on the grounds,
that they have been living separately for a period of one year or more,
that they have not been able to live together, and
that they have mutually agreed that the marriage should be dissolved.
3. The petition may be presented only after one year from the date of entering the certificate of
marriage in the Marriage Certificate Book. However, relaxation may be provided in cases where
exceptional hardship is suffered by the petitioner or in cases of exceptional depravity on the part of
the respondent.
4. The petition seeking divorce by mutual consent could be presented to a District Court, within
whose jurisdiction, either,
 the marriage was solemnized,
 the respondent resides, or in case the wife is the petitioner, where she is residing,
 the parties to the marriage last resided together, or
 the petitioner resides, in cases where the respondent is residing outside the territories to
which the Act extends.

25 | P a g e
5. Between 6 months after, and within 18 months of, the date of presentation of the petition seeking
divorce by mutual consent, both parties must make a motion together seeking grant of a decree of
divorce.
6. Before passing a decree of divorce, the District Court considers the following, among other
aspects:
 that the petition has not been withdrawn yet,
 that a marriage has been solemnized under the Act,
 that the averments in the petition are true,
 that consent for divorce has not been obtained by force, fraud or undue influence
 that there has not been any unnecessary or improper delay in instituting the proceedings.
Thus, the provisions and the procedure for obtaining divorce by mutual consent under the Special
Marriage Act are fairly simple and straight forward.
Parties desirous of obtaining a divorce by mutual consent, must however keep in mind that the Act
also contains provisions dealing with grant of alimony and maintenance, both permanent and during
the pendency of the proceedings. In the cases of divorce by mutual consent, the parties may agree
upon the terms relating to payment of alimony or maintenance and the same may be incorporated in
the pleadings before the Court. However care has to be taken that suitable provisions are
incorporated in the pleadings to avoid future misunderstandings or litigation. It is therefore advisable
that, while discussing the various issues connected with seeking a divorce by mutual consent with
their advocates, the parties must specifically discuss their arrangement and agreement on alimony
and maintenance, and take suitable steps to ensure that their interest is safeguarded.

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CONCLUSION
At the end of this project the researcher’s hypothesis stands corrected and it is not enough to just
consent to divorce, the court cannot just give the decree to divorce it needs concrete proof for that
matter. The researcher also concluded that just by consenting to divorce won’t dissolve the marriage
but the parties have to make a joint petition and decree of the court is a necessity. But with time and
other factors like globalisation and the awareness about marriage with consent and this provided way
for divorce by consent because since people are married to each other by consent they should also be
allowed to dissolve the marriage by their consent if later parties realise that they have made a
mistake and they together decide to end their relationship since they cannot live together it is better
to end the marriage. Now this divorce have to be obtained by court order under Hindu Marriage Act
but under Islamic Law no need to get a decree from court and also that Muslim law take khula also
under consent theory of divorce but unlike mubarat, khula is not the consent of both the parties it is
only the consent from the wife and the petition is also made by the wife and the husband later on
gives the consent, so the researcher could not come to reason as to why it comes under the consent
theory of Divorce. Under Hindu Marriage Act the consent theory was welcomed after an amendment
of Section 13 and it was not there from the beggining. But under Special Marriage Act, the provision
was there from the inception. The consent theory was also criticized on the ground that this consent
theory gives way to hasty and collusive ot it makes divorce too easy or too difficult. But it provides
for conditions which makes the grounds of criticism unreasonable. There were differect theories of
divorce but none of them were suitable enough to sort out this problem when but the parties wanted
to divorce by consent. For example the fault theory requires that one of them (and only one of them)
should be guilty of some matrimonial offence, then and then only the marriage can be dissolved.
Then it was thought that a divorce by mutual consent was the answer to this problem. It is also not
just abound seperating the parties to marriage but if not given divorce the parties could out of
frustration commit marital offence.

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BIBLIOGRAPHY

BOOKS

• Paras Diwan, Modern Hindu Law (23rd Ed., 2016)


• B.M. Gandhi, Hindu law (2nd Ed., 2012).
• Paras Diwan, Law of Marriage and Divorce (7th Ed., 2016)
• The Holy Quran

STATUES

• Special Marriage Act 1954


• Hindu Marriage Act, 1955
• Dissolution of Muslim Marriage Act, 1939

WEBSITES

• https://indiankanoon.org/
• https://www.netlawman.co.in
• https://www.lawcommissionofindia.nic.in
• https://www. comtax.up.nic.in
• https://www.law.cornell.edu/
• https://www.legalserviceindia.com
• https://www.lawhandbook.org

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