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IMPORTANT CASE LAWS AND PROVISIONS IN OTHER RELIGIONS

 DIVORCE BY MUTUAL CONSENT UNDER SPECIAL MARRIAGES ACT, 1954:

Under Special Marriage Act, 1954, the topic of divorce my mutual consent has been dealt in
the same way as it has been dealt in Section 13-B of the Hindu Marriage Act. Therefore,
Section 28 runs pari materia to Section 13-B of the Hindu Marriage Act.

 DIVORCE BY MUTUAL CONSENT UNDER MUSLIM LAW:

The two forms of divorce by mutual consent are recognized under the Muslim law are-

(a) Khul or Khula

(b) Mubaraa or Mubaraat

In either of the above two forms of divorce, the wife has to part with her dower or a part of
it or some other property. These forms of divorce were considered to be progressive and part
of reformist measures introduced by the Prophet. A verse in Quran runs as under:

“And it is 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.”1

(A) KHULA

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. By analogy, it is said that spouses are like clothes to
each other and when they take “khula”, each one takes off his or her clothes, i.e., they get rid
of each other. In Buzul-ul-Raheem v. Luteefuton-nissa2, the Privy Council said:

“A divorce by Khula is a divorce with the consent, and at the instance of the wife, 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,

1
Supra, note 4, at 578.
2
(1861) 8 MIA 379.
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.”

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 accepte
by the husband, it results in divorce.

 CAPACITY TO DIVORCE (KHULA)

Under all schools of Sunnis and Shias, it is necessary that parties to Khula should have
capacity just as in talak. The husband and wife must not be of unsound mind and must be adult,
i.e., must have attained puberty. A minor or a person of unsound mind has no capacity to enter
into a Khula. The Khula may be entered into by any party through an agent. 3 A khul has to
effected during the subsistence of marriage, though it may be effected during the period of idda
also in a revocable form of talak.

Among the Sunnis, a khula made by man in a state of intoxication is not valid. But a Khula
made by an insolvent person is valid. It should also be arrived at during tuhr in which no marital
intercourse has taken place, in case marriage has been consummated. But if the wife is past
child bearing age or has ceased to menstruate, it may be pronounced any time. Khula is valid
among Sunnis even if given under compulsion. The Durr-ul-Mukhtar says that where a wife is
compelled by ill-treatment or cruelty of the husband or for any other reason to seek the khula
or she is forced to accept Khula, it would amount to talak and not khula with the result that the
wife will not be liable to part with her dower or part with the property she agreed to give him
in consideration of his agreeing to khula. This is so both among the Sunnis and Shias. On the
other hand, among the Shias, a Khula made under compulsion is not valid.4

 CONSIDERATION FOR KHULA

Although consideration for Khula is essential, the actual release of the dower, or delivery
of the property constituting the consideration for Khula is not a condition precedent or the
validity of the Khula. Once the husband gives his consent to the Khula, it results in an

3
Fatwa-i-Alamgiri, 1, 685.
4
Supra, note 26.
irrevocable divorce as in talak-ul-bain. The husband has no power of cancelling the Khula on
the ground that the consideration has not been paid. His remedy is to sue the wife for it.5

The consideration for Khula may be anything. Usually it is the mahr, whole or part of it.
But it may be any other property though it should not be illusory, i.e., something over which
the woman has no right. If compensation is illusory, the Sunni law takes the view that the
husband is not bound to release the wife- “whatever is lawful as dower, or capable of being
accepted as dower, may lawfully be given in exchange of khula.”6

It is possible that the Khula may be entered into on consideration to be determined later on.
In such a case, consideration cannot be more than the amount of mahr unless the wife agrees.
It cannot also be less than the amount of mahr, unless the husband agrees.7

 RETRACTION AND REVOCATION

Under all schools of Muslim law a proposal for Khula made by the wife may be retracted
by her at any time before it has been accepted by the husband. It also stands revoked if before
its acceptance, she rises from the meeting in which it is made. But the husband cannot revoke
it by simply walking away from the meeting. The husband is not allowed to do so, even if
proposal comes from him, since Khula on the part of the husband is regarded as a suspension
of talak on the acceptance by the wife.

A Khula with an option to the husband to revoke it cannot be validly entered into. According
to the Hanafis, the Khula with an option is valid and operates as an absolute divorce, and the
option is void. Under the Shia law, both the Khula and the option are void.8

(B) MUBARAAT

In Mubaraat form of divorce by mutual consent, the outstanding feature is that both the
parties, desire divorce, or as the Muslim authorities say, “Aversion is mutual”. Thus, proposal
may emanate from either side.9

The word Mubaraat denotes the act of freeing each other by mutual consent. In the words
of Fyzee, “In the case of Khula, the wife begs to be released and the husband agrees for a certain

5
Saddan v. Faiz Baksh, (1920) 1 Lah 402.
6
Fatwa-i-Alamgiri, I, 675
7
BAILLE, DIGEST OF MOOHUMMUDAN LAW I 311.
8
Muna, 303; Faizee, Muslim Law, 155.
9
Supra, note 11, at 443.
consideration, which is usually a part or the whole of the mahr, while in Mubaraat, apparently
both the parties are happy at the prospect of being rid of each other.”10

Among the Sunnis, when the parties to the marriage enter into a Mubaraat, all mutual rights
and obligations come to an end. The Shia law is stringent on the other hand. It requires that
both the parties must bona fide find the marital relationship to be irksome. Among the Sunnis
no specific form is laid down, but the Sunnis insist on a proper form. If the husband were to
say to his wife, “I have discharged you from the obligation of marriage for such a sum, and you
are separated from me”, divorce would result.11

The mubaraat is an irrevocable divorce among both the Sunnis and the Shias. The other
requirements of the mubaraat are the same as that of the khula. Just as in the khula, so in the
mubaraat, the wife must undergo idda. In both khula and mubaraat, the divorce is essentially
an act of parties, and no intervention of the court is required. However, interestingly, Gauhati
High Court passed a decree of divorce in terms of compromise between the parties.12 In this
case, the wife filed for divorce under section 2(iv), (vii) (a) of the Dissolution of Muslim
Marriage Act, 1939. The court, after close scrutiny of the facts, observed that since the grounds
of divorce under section 2 are already met, divorce may be granted by mutual consent under
the said Act even though there is no express provision for the same in the Act.

10
FAIZEE, MUSLIM LAW 156.
11
AMIR ALI, MOHAMMEDAN LAW, II, 517.
12
Mohd. Abdul Zadil Ahmed v. Marina Begum, AIR 1999 Gau 28.
CASE STUDY
1. Hindu Law

 Anjana Kishore vs. Puneet Kishore

 Anjana Kishore was a transfer petition before the Supreme Court seeking transfer of
divorce petition filed by the respondent husband before the family court at Bandra,
Mumbai to the family court at Saharanpur, U.P. after the noticed in this petition, efforts
were made settlement.

 In the case of Anjana Kishore vs. Puneet Kishore13, a three Judges-Bench of the
Supreme Court while hearing an application for transfer of a matrimonial proceedings,
on the prayer of both the parties, gave liberty to the parties to file joint application for
divorce under Section 13B of the Act before the Family Court with a direction to the
said Court to dispense with the requirement of complying with the provision of the
waiting period in exercise of power conferred under Article 142 of the Constitution of
India by specifically recording that such waiting period is otherwise required to be
maintained. The following observations of the Supreme Court in the said decision are
quoted below14:

“In view of the developments which have taken place during the pendency of proceedings in
this Court, we decline to transfer the case from the Family Court at Bandra, Mumbai to the
Family Court at Saharanpur. We, however, direct that as agreed to by learned counsel for the
parties, a joint petition shall be filed by the parties before the Family Court at Bandra, Mumbai
for grant of divorce by mutual consent. Terms of compromise as filed before us shall also
accompany the joint petition. An application for curtailment of time for grant of divorce shall
also be filed along with the joint petition. On such application being moved the Family Court
may, dispensing with the need of waiting for six months, which is required otherwise by
subsection (2) of Section 13-B of the Hindu Marriage Act, 1955, pass final order on the petition

13
(2002) 10 SCC 194
14
Id. para 3
within such time as it may deem fit. This direction we are making under Article 142 of the
Constitution, as looking at the facts and circumstances of the case emerging from pleadings of
the parties and disclosed during the course of hearing, we are satisfied of the need of making
such a direction to do complete justice in the case.” (Emphasis supplied by us).

 This direction was made by the supreme court by invoking its extraordinary power
under article 142 of the constitution "as looking at the facts and circumstances of the
case emerging from pleadings of the parties and disclosed during the course of hearing,"
the court was satisfied of the need of making such a direction "to do complete justice"
in the case.15

 Dinesh Gulati v. Ranjana Gulati16 (Contempt Proceedings Neglects Mutuality


Aspect u/ Section 13B (1) of the Act)

 In this case recourse to contempt proceedings against the respondent/wife by the


appellant/husband was taken on a grievance that despite a mutual consent recorded
before the Family Court to dissolve their marriage, the wife was not cooperating with
the husband. Further, in the case suo moto contempt proceedings were initiated by the
learned Family Court against the husband for non-compliance of the consent order.

 The Division Bench held that such an order of initiating suo moto contempt
proceedings neglects the mutuality aspect provided for under Section 13B of the
Act and once the parties were unable to or did not wish to proceed with the agreement
for mutual consent divorce, then the only recourse was to restore the original divorce
petition.

 Sureshta Devi vs. Om Prakash17 (Mutual consent is a sine qua non for passing
a decree of divorce)

 In the case of, the Apex Court ruled that mutual consent is a sine qua non for passing a
decree of divorce and the said consent must be valid and subsisting until the time a final

15
Ibid.
16
MAT. APP. (F.C.) 70/2016
17
(1991) 2 SCC 25
decree of divorce is passed.

 Smruti Pahariya vs. Sanjay Pahariya18 (Presumption of Consent u/Section 13B of


the Act)

 In the case of, the Apex Court held that consent cannot be presumed by the absence in
Court of one spouse at the end of 6 months cooling off period in mutual consent divorce
petition. It was also opined that courts cannot presume consent of a party merely
because both the parties are signatories to the First motion under Section 13B of the
Act. Before passing a decree of divorce, the court remains under an obligation to satisfy
itself as to whether the consent given by the parties is a valid one19.

 Rajiv Chhikara vs. Sandhya Mathur20 (Resiling from a Settlement Agreement


constitutes mental cruelty)

 In the case of, the Division Bench of Delhi High Court while referring to the case
of Sandhya Kumari v. Manish Kumar, opined that in the case the [arties had been living
separately since 2009 and their relationship was beyond repair. Hence in such
circumstance one spouse insists of retaining the matrimonial bond then the same would
be like putting the spouse under intense situation of mental cruelty.

 Smt. Sureshta Devi vs Om Prakash21 (Whether it is open to one of the spouses


at any time till decree of divorce is passed, to withdraw the consent?)

 In this case, the question that arose before the Supreme Court was as to whether it is
open to one of the spouses at any time till a decree of divorce is passed, to withdraw
the consent given to the petition filed under Section 13B of the Act?

 The Supreme Court noticed the divergent views expressed by different High Courts.
The Bombay High Court, Delhi High Court and Madhya Pradesh High Court took a
view that the critical time for the consent for divorce under Section 13B of the Act was
when the first petition was filed and if the consent was given voluntarily, it was not
possible for any party to withdraw the said consent.

18
(2009) 13 SCC 338
19
Hitesh Bhatnagar vs. Deepa Bhatnagar AIR 2011 SC 1637
20
2017 (161) DRJ 80 (DB)
21
1991 SCR (1) 274
 On the other hand, the Kerala High Court, Punjab and Haryana High Court and
Rajasthan High Court held that it is open to one of the spouses to withdraw the consent
given to the petition at any time before the court passes a decree of divorce.

 On interpreting Section 13B(2) of the Act and analyzing the divergent views expressed
by different High Courts, the Supreme Court approved the view expressed by the High
Courts of Kerala, Punjab & Haryana High Court and Rajasthan on the interpretation of
Section 13B(2) of the Act and held:
“That from the analysis of the Section, it will be apparent that the filing of the petition with mutual
consent does not authorise the court to make a decree for divorce. There is a period of waiting from
6 to 18 months. This interregnum was obviously intended to give time and opportunity to the parties
to reflect on their move and seek advice from relations and friends. In this transitional period one
of the parties may have a second thought and change the mind not to proceed with the petition. The
spouse may not be party to the joint motion under sub-section (2). There is nothing in the Section
which prevents such course. The Section does not provide that if there is a change of mind it should
not be by one party alone, but by both.”

 At the time of the petition by mutual consent, the parties are not unaware that their
petition does not by itself snap marital ties. They know that they have to take a further
step to snap marital ties. Sub- section (2) of Section 13-B is clear on this point. It
provides that “on the motion of both the parties‖ …. If the petition is not withdrawn in
the meantime, the Court shall pass a decree of divorce.

 What is significant in this provision is that there should also be mutual consent when
they move the court with a request to pass a decree of divorce. Secondly, the Court shall
be satisfied about the bonafides and the consent of the parties. If there is no mutual
consent at the time of the enquiry, the court gets no jurisdiction to make a decree for
divorce. If the view is otherwise, the Court could make an enquiry and pass a divorce
decree even at the instance of one of the parties and against the consent of the other.
Such a decree cannot be regarded as decree by mutual consent.

 The decision in the case of Sureshta Devi case was endorsed by a three Judge Bench of
the Supreme Court in the Smruti Pahariya case, wherein the Apex Court stated that it
is only on the continued mutual consent of the parties that a decree for divorce under
Section 13-B of the said Act can be passed by the court. If petition for divorce is not
formally withdrawn and is kept pending then on the date when the court grants the
decree, the court has a statutory obligation to hear the parties to ascertain their consent.
The court has to be satisfied about the existence of mutual consent between the parties
on some tangible materials which demonstrably disclose such consent.

 Hirabai Bharucha vs. Pirojshah Bharucha22 (Terms of Settlement against the


Public Policy)

 In the case the High Court was of the view that every effort must be made by the Courts
to sustain the institution of marriage. That if a contract between the spouses recording
the terms of settlement runs against the public policy, then it must be treated as void ab
initio and unenforceable in law and in those circumstances, contempt proceedings
cannot be resorted to.

 Rajesh R. Nair vs. Meera Babu23 (Consent can be Withdrawn Even at the Stage
of Enquiry u/Section 13B(2) of the Act)

 In the case, the issue that was raised was whether once a consent is given and later on,
it is withdrawn by one of the parties, can the court enquire into the bonafides or
otherwise of the withdrawal of the said consent?

 The said issue was examined by a Division Bench of the Kerala High Court, whereby
the Court remarked the following:
”By providing that the enquiry under S. 13B(2) shall be only if consent is not withdrawn, the
statute specifically recognizes the right of the parties to withdraw the consent even at the stage
of the enquiry contemplated under S. 13B(2). That right available to the parties is an unqualified
right and for any reason whatsoever, if the parties or one of them, choose to withdraw their
consent, such withdrawal of consent is in exercise of the right available under S. 13B(2).”

 If that be so, it is not for the court to probe into the bona fides or reasonableness of
withdrawal of consent and once consent is withdrawn, the only option available to the
Court is to close the matter at that stage. If that be the legal position, we are unable to
find any fault on the part of the Family Court in having dismissed the petition on the
ground of non-compliance of the requirement of S. 13B(2) of the Act.

22
AIR (32) 1945 Bombay 537
23
AIR 2014 Kerala 44
 Mr.Prakash Alumal Kalandari vs Mrs.Jahnavi Prakash Kalandari 24 (Consent
to continue till the date of Granting Decree of Divorce)

 In this case, the Bombay High Court ruled that if the Petition is filed “simplicitor under
Section 13B of the Act” for divorce by mutual consent, the Court must satisfy itself that
the consent given by the parties continues till the date of granting decree of divorce.
Even if one party unilaterally withdraws his/her consent, the Court does not get
jurisdiction to grant decree of divorce by mutual consent in view of the mandate of
Section 13B of the Act.

 It was further held that before the decree is passed, one party cannot be allowed to
unilaterally withdraw the consent if the other party has already acted upon the Consent
Terms either wholly or in part to his/her detriment. In other words, the Court will have
to be satisfied that: (i) there is sufficient, good and just cause for allowing the party to
withdraw his consent, lest, it results in permitting the party to approbate and reprobate;
(ii) that the other party would not suffer prejudice which is irreversible, due to
withdrawal of the consent. If this twin requirement is not satisfied, the Court should be
loath to entertain the prayer to allow the party to unilaterally withdraw his/her consent.

 Jyoti vs. Darshan Nirmal Jain25 (Courts shall make every Effort to Sustain
Marriage)

 In this case, the appellant/wife had challenged a decree of dissolution of marriage


granted by the Family Court under Section 13B of the Act on the ground that her
consent had been obtained by deceit and fraud and had argued that even if she had given
her consent, the husband and wife had not separated for a minimum period of one year,
which is an essential ingredient of Section 13B of the Act, due to which dissolution
could not have been granted.

 In the above factual matrix, the Division Bench of the Gujarat High Court had laid
much stress on the fact that marriage is an institution that ought to be sustained and the
society and courts must make every effort to build broken bridges between spouses and

24
AIR 2011 BOM 119
25
AIR 2013 Gujarat 2018
held:
“That such conditions are statutorily provided before a petition for dissolution for divorce on
mutual consent can be presented. It was not even open for the parties to waive such conditions.
It is not even the case of the parties that such conditions were waived in any case. Any other
view would permit the parties to marriage to present a petition for dissolution of marriage
within days of marriage urging the court to accept a consent petition and dissolve the marriage
merely on the ground that the parties have agreed to dissolve such a marriage. Such a view
would be opposed to the very basic philosophy and principle that as far as possible, the society
and the courts make all attempts to ensure that the institution of marriage sustains and is not
lightly broken. It is because of these reasons that invariably provisions are made in the statute
providing for a cooling-off period before which, no petition for dissolution of marriage can be
presented, not only on mutual consent but on any other grounds as well. It is because of this
reason that section 23 of the Hindu Marriage Act as well as section 9 of the Family Courts Act
make detailed provisions enjoining upon the courts to make all efforts to bring about a
settlement and reconciliation between the parties to such divorce petition.”

 Amardeep Singh v. Harveen Kaur26 (SC says 6 Months Waiting Period for
Divorce by Mutual Consent is not mandatory)

 In a recent landmark case of the Supreme Court made a notable observation by


holding that 6 months waiting/ cooling –off period as contemplated under Section
13B(2) of the Act is not mandatory.

 The Supreme Court held 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.

 The Court further observed that in view of this, Courts can exercise its discretion
depending on the facts and circumstances of each case and waive off the stipulated
period where there is no possibility of resuming cohabitation and there are chances
of alternative rehabilitation.

 In this case, the parties were living separately since 2008. In 2017 the parties arrived
at a settlement and applied for divorce by mutual consent. In the case, the parties
prayed the Court to waive off the period of 6 months as prescribed under Section
13B(2) of the Hindu Marriage Act, 1955 on the ground that they have been living
separately for the last 8 years and that there was no possibility of their re-union.

26
CIVIL APPEAL NO. 11158 OF 2017 on September 12, 2017
 Key takeaways from the Court’s verdict:

 The Supreme Court stated that the Court dealing with a matter is satisfied that a
case is made out to waive the statutory period under Section 13B(2) it can do so
after considering the following :

 The statutory period of six months specified in 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;

 That all efforts for mediation/conciliation to reunite the parties have failed and there
is no likelihood of success in that direction by any further efforts;

 That the parties have genuinely settled their differences including alimony, custody
of child or any other pending issues between the parties

 That the waiting period will only prolong their agony.

 The waiver application can be filed one week after the first motion giving reasons
for the prayer for waiver.

 If the above conditions are satisfied, the waiver of the waiting period for the second
motion will be in the discretion of the concerned Court.

 That as the period mentioned in Section 13B(2) is not mandatory but directory, it
will be open to the Court to exercise its discretion in the facts and circumstances of
each case where there is no possibility of parties resuming cohabitation and there
are chances of alternative rehabilitation. The Court also stated that such proceedings
can also be conducted through video conferencing.

2. Islamic Law
 Mst. Umar Bibi v Muhammad Din-
 Khurshid Bibi was married to Muhammad Amin, and her brother was married to his
sister.Since there were no offspring of the wedlock, Muhammad Amin took a second
wife. Within twenty days of the second marriage, their relations became strained. She
demanded a separate house and though he promised it to her, he failed to fulfill his
promise. She complained of maltreatment at his hands. There arose such differences
between them that Muhammad Sharif, her brother, took out warrants under section 100,
Criminal Procedure Code, and she left his house. The respondent’s father convened two
Panchayats, but efforts at reconciliation between the spouses failed.
 Khurshid Bibi then brought a suit for dissolution of marriage with Muhammad Amin,
and he instituted a suit for restitution of conjugal rights. Her suit was dismissed, but her
husband’s suit was decreed against her on January 21, 1960. Muhammad Amin visited
her at her parents’ house to realize costs awarded to him in his suit.
 Khurshid Bibi then initiated a second suit against Muhammad Amin on February 22,
1960, alleging that he had orally divorced her on January 29, 1960 and agreed to give
her a deed of divorce on the following day, but had not kept his promise. She prayed
for a declaration that having been divorced by him, she was no longer his wife, and in
the alternative, for a decree for dissolution of her marriage by khula. She was willing to
give up her dower, since it had become impossible for them to live together as husband
and wife. She also alleged that Muhammad Amin had not incurred any expenses in his
marriage with her. In response, Muhammad Amin denied that he had orally divorced
her or that she was entitled to dissolution of marriage by khula. He said their relationship
was not so unhappy as to make it impossible for them to live together. He also claimed
he had spent Rs. 2,000 on their marriage. He was opposed to divorcing her even if she
were to give up her dower.
 The trial court did not believe that Khurshid Bibi’s husband had orally divorced her.
The trial court then decided that there was no likelihood of the parties being restored to
a harmonious relationship. Since the plaintiff had filed a second suit for dissolution of

[ ¶1.] marriage, she clearly was determined not to live with him or go to his house. Islam

[ ¶2.] preferred separation rather than a married state in name only. So the court decreed the

[ ¶3.] plaintiff’s suit, dissolving her marriage in exercise of her right of khula.
 In Muhammad Amin’s appeal, the District Judge held it was not possible to believe that
[ ¶4.] immediately after the dismissal of her suit, the respondent would divorce her, and that
if he had really wanted a divorce he would have given her a statement in writing. The Judge
also stated that khula should not be granted because the Plaintiff had not come to court with a
straightforward story, and because there was some truth to the fact that it was a case of zid
(obstinacy) on her part because of his second marriage.
 In Khushid Bibi’s second appeal, the Single Judge of the High Court believed that
because her brother was married to his sister, he could not afford to be inconsiderate
towards her. Thus, he felt that if the defendant could not provide a separate residence
for her it was because he lacked the means. He also felt that because she was not
prepared to live with her husband because he had remarried, but that this was not a
grounds for khula divorce. Her appeal was dismissed in limine.