8/18/2019 Divorce by mutual consent

Divorce by mutual consent Nuisance: Section 133

 On March 19, 2015  By Neerja Gurnani of CrPC

Rashmitha on General
Anonymous Defenses In Torts

Editor’s note: Derick Kishore G on

Inter-caste and Inter-
Divorce by mutual consent is addressed under religious Marriages
S. 13 B of the Hindu Marriage Act, 1955 and
shamsudeen o k on
Section 28 of the Special Marriage Act, 1954.
Concept Of Waqf
For parties to seek divorce by mutual consent, Under Muslim Law
they must be living separately for a period of
andy on Concept Of a 
atleast one year, and must resolve towards the
Fair Trial
end of the marriage. They must not be
performing marital obligations – physical
separation is not a criteria. The marriage must
be beyond reconciliation, and presenting a CALENDAR
petition for divorce together does not indicate
amicability. Consent, however, must be free. If AUGUST 2019
after 6 months the petition is not withdrawn, the
parties may move the court within 18 months, M T W T F S S
after which the Court may grant the divorce.
  1 2 3 4

Introduction 5 6 7 8 9 10 11

Marriages are considered as sacred alliance for life, it is not 12 13 14 15 16 17 18

just a union between two persons but between two families.
19 20 21 22 23 24 25
Nonetheless, it is a relation between two people and since no
human is perfect it is highly probable that two people do not 26 27 28 29 30 31  
feel compatible with each other so as to live together a whole
« Apr    
life. Therefore, it can be seen that the cases of divorce are
fast rising even in countries like India where marriages are
considered to be made in heaven. In these circumstances, it is
TAGS
always better that couple take divorce by mutual consent so
as to avoid further disputes, time and money.
 ADR  agency
This paper will essentially deal with the idea of divorce on
 article 19  article
grounds of mutual consent. Section 13 B of the Hindu

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Marriage Act, 1955 and Section 28 of the Special Marriage 21  Competition

Act, 1954 deals with the provision of divorce on grounds of  constitution

mutual consent. This project will analyse these sections and  constitutional law

also deal with the various amendments incorporated in these  Constitution of India

sections.  contract

 contracts
Hindu Marriage Act  criminal law

 death penalty
The ground of divorce by mutual consent was inserted in the
 divorce
Hindu Marriage Act 1955 by an amendment in 1976, by
 education  fair
adding Section 13B[1]. Section 13B of the Hindu Marriage
trial  Fundamental
Act[2], 1955 runs:
Rights  hindu law

Subject to the provisions of this Act a petition for  Human Rights 

dissolution of marriage by a decree of divorce may be  India  indian

presented to the district court by both the parties to a constitution  Indian

marriage together, whether such marriage was Contract Act  Indian

solemnised before or after the commencement of the Evidence Act  Indian

Marriage Laws (Amendment) Act, 1976, on the ground penal code

that they have been living separately for a period of one  international law

year or more, that they have not been able to live  IPC  IPR

together and that they have mutually agreed that the  judicial activism

marriage should be dissolved.  jurisprudence

 law  marriage

 Muslim Law
On the motion of both the parties made not earlier than  patent  Private
six months after the date of the presentation of the International Law
petition referred to in sub section (1) and not later than  Property  Property
eighteen months after the said date, if the petition is not Law  rape  Right
withdrawn in the meantime, the court shall, on being to information  rule of
satis ed, after hearing the parties and after making such law  Sovereign
inquiry as it thinks t, that a marriage has been  special marriage act
solemnized and that the averments in the petition are  Tort Law  Transfer
true, pass a decree of divorce declaring the marriage to Of Property Act
be dissolved with effect from the date of the decree.  uniform civil code

 USA  WOMEN

Section 28 of the Special Marriage Act, 1954 which also deals

with divorce on grounds of mutual consent is pari materia to
the above section.
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Requirements of divorce by mutual Looking for

consent Legal Help?
Fields marked with an
The requirements which have to be met to seek divorce under
* are required
Hindu Marriage Act are as follows:
Name *
The parties have been living separately for a period of at
least one year

Email*

They have not been able to live together, and

Phone *


They have mutually agreed that marriage should be
State *
resolved.[3]

Andhra Pradesh

The rst requirement is that the parties should be living

separately for a period of at least one year before ling the Budget *
divorce petition. It is necessary to understand what does the
1500-5000 
term “living separately’ means.

Living separately Type of

The Supreme Court of India in the case of Sureshta Devi v Om Assistance *
Prakash[4] has ruled out “that the expression living separately Drafting of
connotes not living like husband and wife. It has no reference Documents
to the place of living. The parties may live under same roof by Due Diligence
way of circumstances, and yet they may not be living as Advisory
husband and wife. What seems to be important is that they
Regulatory
have no desire to perform marital obligations and with that Applications
they have been living separately for a period of one year Dispute
immediately preceding the presentation of the petition.”  It has Resolution
been ruled out by Supreme Court in various cases that the Others
expression “have been living separately’ does not necessarily
means physical separation or living separately and apart what
is material is that no marital obligations are performed
between the spouses and they are not living together as
husband and wife.

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Parties have not been able to live Query /

together Background

After establishing the rst requirement that the parties were 

living separately for one year or more, the second point that
has to be established is that the parties have not been able to
live together.

In Sureshta Devi v Om Prakash[5], the Supreme Court

300 of 300 Word(s) left
observed that expression “have not been able to live together”
seems to indicate the concept of broken down marriage so
SUBMIT
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.[6] 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 in uence.

After satisfying the above two requirements and ling 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 ling of the
joint petition. This period is given to parties to re-think their
decision.

The following aspects of this provision have been subject to

judicial interpretation:[7]

Whether the waiting period of six

months is mandatory or directory
There have been con icting judgements on this regard that
whether the courts should mandatorily wait for a period of six
months as given in the sub section(2) of Section 13B. In the
Grandhi Venkata Chitti Abbai[8] case, the court observed that-

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“If Section 13-B (2) is read as mandatory, the very purpose of

liberalizing the policy of decree of divorce by mutual consent
will be frustrated more so when the parties started living

separately for a considerable time. Thus s 13-B (2) though is
mandatory in form is directory in substance. Likewise, in the
case of Dinesh Kumar Shukla v Neeta,[9] it was held that the
waiting period is directory in nature and it can be brought
down from 6 months( provided the mandatory requirements
of s 13-B (1) are ful lled) when all efforts at reconciliation
failed.

But, in the case of Hitesh Narendra Doshi v Jesal Hitesh Joshi,

[10] it was held that “the provision has a de nite purpose and

object, i.e. giving time to the parties for introspection and
reconciliation. That purpose and object stares at us so clearly
by the language expressed in s 13-B (2) of the Act robbing
away the right of the court from considering the petition
earlier than six months.”

In the case of Ashok Hurra v Rupa Ashok,[11] it was held that

“in exercise of its extraordinary powers under Article 142 of
the Constitution, the Supreme Court can grant relief to the
parties without even waiting for the statutory period of six
months stipulated in s. 13-B of the Act. This doctrine of
irretrievable break-down of marriage is not available even to
the High Courts which do not have powers similar to those
exercised by the Supreme Court under Article 142 of the
Constitution.”

Therefore, the courts have been inclined more towards

waiving off this period if the circumstance of the case
demands so and where there is no chance of reconciliation
between the parties. Also, Supreme Court by way of its
extraordinary powers as provided under Article 142 of the
Indian Constitution can grant divorce without waiting for 6
months if it is satis ed that the marriage is irretrievably
broken down. However, this power is restricted only to
Supreme Court. There is still uncertainty whether High Courts
and Family Courts have to mandatorily wait for a period of 6

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months. But as it is evident from many cases where there is

no possibility of reconciliation between the parties and the
marriage has been broken down irretrievably, the courts

should follow the spirit of law more than the formal
requirements of the section.

Whether consent can be

unilaterally withdrawn
There have been contrasting judgements on this issue. The
controversy is that since under this section both parties have
to le 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.

In Jayashree Ramesh Londhe v Ramesh Bhikaji,[12] the court

held that once a joint petition by mutual consent was led, no
party could withdraw from it without the consent of both the
parties.  Likewise, in Nachhattar Singh v Harcharan Kaur,[13] it
was held that- “If both the parties had voluntarily consented to
le the petition for dissolving the marriage by mutual consent
and all other conditions mentioned in sub-section (1) of
section 13-B of the Act are ful lled, it will not be open to a
party to withdraw the consent.”

On the other hand, in Sureshta devi v Om Prakash[14], the

Court has held that petition of divorce can be withdrawn
unilaterally. It was held in this case that if one of the parties
withdraws its consent the Court cannot pass a decree of
divorce by mutual consent. The Court held that “if the decree
is solely based on the initial petition it negates the whole idea
of mutuality and consent for divorce. Mutua consent to
divorce is sine qua non for passing a decree for divorce under
Section 13-B. Mutual consent should continue till the divorce
decree is passed.”[15]

However, in a recent judgement of Supreme Court in the case

of Anil Kumar Jain v Maya Jain[16] it was held that- “Under the

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existing laws, the consent given by the parties at the time of

ling of the joint petition for divorce by mutual consent has to
subsist till the second stage when the petition comes up for

orders and a decree for divorce is nally passed and it is only
the Supreme Court, which, in exercise of its extraordinary
powers under Article 142 of the Constitution, can pass orders
to do complete justice to the parties.” The Supreme Court
however clearly expressed that only use the power under
Article 142 only in special circumstances, in normal
circumstances the provisions of the statute have to be given
effect to.

The law as explained in the Sushreta Devi’s case still holds


good that is the parties can withdraw consent unilaterally. But
Supreme Court using its power as provided under Article 142
of the Constitution can grant divorce even if the wife or
husband withdraws its consent during the proceedings in the
lower court and prior to the passing of the decree.

Whether mere silence at the

second stage would tantamount to
withdrawal
If the parties who have led for divorce under mutual consent
and after the end of the 6 month period what is to be done if
either of them do not turn up. Will it amount to withdrawal of
consent? Rajasthan High Court in the case of Suman v
Surendra Kumar[17] has answered these issues. In this case
the husband after ling a joint consent petition for divorce did
not appear for hearings. The family court held that no decree
could be passed in the absence of both the parties. On appeal
it was held by the court that- “When one party has himself left
the matter for inference, the inference ought to be drawn in
favour of consent rather than for absence of consent.” It was
held that silence cannot be taken to amount to withdrawal of
consent.

Conclusion

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Through this paper, we have analysed the Section 13-B of the

Hindu Marriages Act. Divorce by mutual consent provides an
opportunity of amicable resolution of disputes between

parties and saves time and money. The requirements as
provided under this section are that before ling a joint
petition for divorce parties must be living separately for a
period of at least one year. As we mentioned out earlier living
separately does not necessarily connotes physical separation,
what is essential is that parties are not ful lling marital
obligations and not living as husband and wife. The second
requirement is that the parties have not been able to live
together. The fact that both the parties have led a joint
petition by mutual consent is indicative of the face that 
parties have not been able to live together. Only thing that is
important is that the consent has been obtained freely and not
by way of force, fraud or undue in uence as the whole
purpose of mutual consent will be vitiated if consent is not
free. After parties have led a joint petition for divorce
ful lling all the requisite conditions they are given a time
period of six months and not more than eighteen months after
which they have to le a second motion and courts after
hearing the parties and scrutinising the averments in the
petition pass a decree of divorce. The three points of
contention are that whether the waiting period of six months
is mandatory or directory, the second is that can parties
unilaterally withdraw their consent and third that whether
silence at the second stage would amount to tantamount to
withdrawal. There have been contrasting judgements on the
rst two issues. Different high courts have adopted different
yardsticks in the interpretation of the Section 13-B. Some High
Courts have held that the waiting period of six months is
mandatory as per the section whereas some High Courts have
adopted the spirit of law more than the technical words of the
section and have ruled out that the period is directory if there
is no chance of reconciliation between the parties. However,
Supreme Court using its extraordinary powers under Article
142 of Constitution can pass the decree of divorce without
waiting for a period of 6 months. Also, Supreme Court in the

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case of Sushreta Devi has ruled out that the petition of divorce
can be withdrawn unilaterally. On the third issue the courts
have ruled out that silence or not appearing for hearings will

not amount to withdrawal of consent.

Edited by Neerja Gurnani

[1] Kusum, Family Law Lectures (2nd, Lexis Nexi Butterworths

wadhwa, Nagpur 2007) 161

[2] The Hindu Marriage Act 1955 s 13(B)

[3] Paras Diwan, Law of Marriage & Divorce (5th, Universal

Law Publishing Co., New Delhi 2008) 525

[4] (1992) AIR SC 1904

[5] Id

[6] Paras Diwan, Law of Marriage & Divorce (5th, Universal

Law Publishing Co., New Delhi 2008) 529

[7] Kusum, Family Law Lectures (3rd, Lexis Nexi Butterworths

wadhwa, Nagpur 2002) 162

[8] AIR 1999 AP 91

[9] AIR 2005 MP 106

[10] AIR 2000 AP 364

[11] AIR 1997 SC

[12] AIR 1984 Bom 302

[13] AIR 1986 P&H

[14] AIR 1992 SC

[15] Id

[16] AIR 2009 SC

[17] AIR 2003 Raj 155

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