FAMILY LAW-1

RESEARCH PAPER
“Mutual Divorce and its Dimensions under Hindu
Marriage Act 1955”
ACADEMIC YEAR (2018-19).

Submitted by
SIMRAN SWAROOP (18010324139)

Division-D

2nd YEAR BA.LLB.

Symbiosis Law School, Hyderabad

Symbiosis International University, PUNE

AUGUST,2019
Under the guidance of
Mr. Ahmar Afaq

Assistant Prof,
Symbiosis Law School, Hyderabad.

SINGNATURE OF TEACHER SIGNATURE OF STUDENT

INTRODUCTION
Throughout the history and in the modern world, DIVORCE E was unknown to
general Hindu law as marriage was regarded as an indissoluble union of the
husband and wife. Manu declared that a wife cannot be released by her husband
either by sale or by abandonment, implying that the marital tie cannot be
severed in any way. Although Hindu law does not contemplate divorce yet it
has been held that where it is recognized as an established custom it would have
the force of law.

According to Kautilya’s Arthashatra, marriage might be dissolved by mutual

consent in the case of the unapproved form of marriage. But, Manu does not
believe in the discontinuance of marriage. He declares” let mutual fidelity
continue till death; this, in brief, may be understood to be the highest dharma of
the husband and wife[i].”

However, this changed when divorce was introduced in the Hindu Marriage
Act, 1955.

HISTORY
The Indian Divorce Act governs divorce among the Christian couples in India.
Divorce is the legal dissolution of the marital union between a man and a
woman. According to this act, the separation is granted by the court of law after
receiving a petition from either wife or husband. Divorce is followed by
granting alimony, child custody, and child visitation, distribution of property
and distribution of debts. Before opting for a divorce, the Christian couple
should be aware of the fact that a divorce procedure in our country.

RESEARCH OBJECTIVE
This paper is all about the issues related to MUTUAL DIVORCE in India. In
the case of Shikha Bhatia vs. Gaurav Bhatia & Ors. and Avneesh Sood vs. Tithi
Sood, the Courts had opined that a spouse, who gives an undertaking to the
court to abide by the consent given in the First motion for dissolution of
marriage under Section 13B (1) of the Act and for moving a Second motion
petition, cannot be permitted to resile from such an undertaking on the basis of
an agreement arrived at between the parties and any attempt to resile therefrom
would amount to a breach of the undertaking accepted by the court and
therefore, attract contempt proceedings.

In another case i.e. Rajiv Chhikara vs. Sandhya Mathu, the Division Bench of
Delhi High Court opined that resiling from a settlement amounts to mental
cruelty. The Court in the case observed that the parties 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.

RESEARCH QUESTIONS
1) WHAT IS DIVORCE BY MUTUAL CONSENT?
2) DOES MUTUAL DIVORCE LEGALIZE IN INDIA?
3) WHAT ARE THE LAWS RELATED TO MUTUAL CONSENT
DIVORCE?
4) DOES THE MAINTENANCE IS AWARDED IN CASE OF
DIVORCE BY MUTUAL CONSENT?

RESEARCH OUTCOME
Research finds Divorce by mutual consent is the quickest way to obtain divorce.
Since it is obtained with a pure intention of seeking divorce mutually, it
ultimately benefits the parties to a great extent. Being a mutual decision, both
parties cooperate with each other throughout the process and hence it prevents
wastage of time and energy. It also prevents the parties from wasting their
money in fighting the case against one another. This further maintains the
personal, professional and social image of both spouses and brings peace for
both of them.
Seeking divorce by mutual consent will eventually minimize the hassles and
difficulties faced by couples in comparison to a contested divorce and further
simplify the process for both parties. However, it is important for both parties to
make sure that all the terms and conditions are clarified mutually in writing and
that there is no discrepancy and issues post seeking divorce by mutual consent.

SYNOPSIS

1. Introduction
2. History
3. What is Divorce?
4. When one can seek Divorce?
5. Types of Divorce in India.
6. What is Divorce by Mutual Consent?
7. Procedure for seeking Divorce by Mutual Consent.
8. Mutual Divorce legalized in India?
9. What are the laws related to Mutual Consent Divorce?
10.Does the maintenance is awarder in case of Divorce by Mutual
Consent?
11.Divorce rate in India.
12.Dimensions of Mutual Divorce.
13.Advantages and Disadvantages.
14.Case Laws.
15.Conclusion