Divorce by Mutual Consent: A Blessing in Disguise.

 

It is not a hidden fact that Hindu Marriage Act was never drafted by keeping a contradictory view in mind i.e. the dissolution of a marriage. In Hindu culture a marriage is regarded as a sacrament. As result, getting divorce is not that easy. Getting a divorce in India can be a daunting task if not done amicably. Generally, mutually consented divorce takes 6 to 12 months and contested divorce takes at least 8 to 12 months, but it can be extended for 3 to 4 years or more.

Divorce by Mutual Consent is mentioned under Section 13B of the Hindu Marriage Act, 1955. A mutual consent divorce can be sought when both husband and wife are willing to put an end to their relationship. There is no need to fight a battle in the court since the husband and wife lay down the conditions which governs their divorce. The factor which makes uncontested divorce a blessing is that the most complicated and time-consuming processes like child custody, division of property and maintenance or alimony are pre decided between husband and wife which turns out to be time saving for the court.

 Section 13B (1) states that, 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, 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.

Section 13B (2) states that, on the motion of both the parties made earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than 18 months after the said date, if the petition is not withdrawn in the meantime, the Court shall, on being satisfied, after hearing the parties and after making such enquiry as it thinks fit, that a marriage has been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.

Divorce by mutual consent became a blessing in disguise when the apex court in 2017, said that six months “cooling off” period can be can be waived by the courts in cases of divorce through mutual consent. The High Court allowed a petition by the woman for waving the statutory period of six months under Section13B (2) of the Hindu Marriage Act,1955. In case of a divorce by mutual consent, it is not necessary to present a ground for divorce. The relationship between the husband and wife should be beyond repair. The Supreme Court of India in the case of Amardeep Singh vs Harveen Kaur (Civil Appeal No.11158 of 2017) held that “the statutory period of six months specified in section 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.

All efforts for mediation/conciliation including efforts in terms of Order XXXIIA Rule 3 CPC/Section23 (2) of the Act/Section 9 of the Family Courts Act to reunite the parties have failed and there is no likelihood of success in that direction by any further efforts. The parties have genuinely settled their differences including alimony custody of child or any other pending issues between the parties. The waiting period will 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. Since we are of the view that 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 alternate rehabilitation. The parties are now at liberty to move the concerned court for fresh consideration in the light of this order. The appeal is disposed of accordingly”.

Where the divorce petition can be filed?

It can be filed in the family court of the city/district where both the partners lived together for the last time and which was there matrimonial home. After the filing of the petition and recording the statements of both the parties, the court generally adjourns the matter for 6 months. During this period when the petition is pending in the court any party can withdraw the mutual consent by filing an application stating the reasons for the same. The other party can file a new petition for normal divorce under section 13 of the Hindu Marriage Act, 1955. But this divorce shall be granted with keeping certain conditions in mind like cruelty, adultery etc. After six months the parties have to present themselves again in the court for making a second motion confirming the mutual consent filed earlier. After this second motion a decree of divorce is passed by the court.

Blog By:

Ankit Yadav

Amity Law School, Noida

 

 

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