HINDU LAW: DIVORCE BY MUTUAL CONSENT

Reading time : 8 minutes

INTRODUCTION

As per Hindu Law, marriage is considered holy matrimony that ties men and women and their families in a sacred relationship. It is a religious sacrament between a man and women which bounds them permanently, for physical, social and spiritual ends of life. The modern marriage has a contractual nature. It revolves around a concept of liberty and equality. It can be said that Hindu Marriage is neither a contract nor a sacrament, but a combination of both.

In India, under the Hindu Law, Hindu Marriage Act, 1995, Special Marriage Act 1954, The Indian Divorce Act 2001, etc. govern the rights and obligations under marriage.

As per K. Srinivas Rao v. D.A. Deepa, marriage cannot be artificially reunited when it is dead for all purposes. It involves human sentiments and emotions, and hence they cannot be artificially recreated by courts decree. Therefore it provides a remedy of divorce, which means Dissolution of marriage and releasing them from its obligations.

DISSOLUTION OF MARRIAGE UNDER HINDU LAW

As per the Blacks Law Dictionary, Dissolution means “bringing to an end”. Under the law marriage is considered an agreement, therefore can be brought to an end. Thus, after the solemnization of marriage, it can be dissolved either through judicial separation or Divorce under The Hindu Marriage Act, 1995. This applies to any person whos Hindus, Buddhists, Jainas or Sikhs by religion.

Judicial Separation (S. 10)

The judicial sanction of separation permits under the law for the spouses to analyze their disturbed marriage life while living apart. There would be no obligation for either party to cohabit with the other. Mutual rights and obligations arising out of a marriage are suspended.

It was held in Hirachand Srinivas Managaonkar v. Sunanda that “the decree for judicial separation does not sever or dissolve the marriage tie which continues to subsist. It affords an opportunity to the spouse for reconciliation and readjustment.”

Divorce (S. 13)

Divorce dissolves the marriage permanently, and the parties are free from all the obligations under it. Either can appeal for divorce of the party after solemnization of marriage.

Conditions under which Judicial Separation and Divorce can be granted:

A person can appeal against his/her spouse if the defendant has:

  1. Performed Adultery
  2. Cruel behavior towards the petitioner
  3. Deserted the plaintiff (for two years or more)
  4. Deceased to be Hindu by conversion, or
  5. Unsound mind or incurable condition
  6. Venereal disease of communicable form
  7. Renounced the world
  8. Not been heard alive for seven years or more

Divorce By Mutual Consent (S. 13B)

When both the parties to the marriage agree to dissolve their marriage, they can appeal for the decree of divorce by mutual consent under section 10A of The Indian Divorce Act 2001, Hindu Marriage Act, 1995, and Special Marriage Act 1985. It is a proper appeal under the section if the parties have been living separately for a year or more and have not been able to live together.

The petition for divorced can be withdrawn between 6 months to 18  months from the date of appeal. If not withdrawn and the courts after the hearing if finds fit will pass a decree which will dissolve the marriage.

If the second motion for an appeal is not filed within 18 months of the first appeal, the court is not bound to grant a decree for divorce by mutual consent with effect from the date of the decree.

ESSENTIALS UNDER SECTION 13B

  1. The petition is filed by both the parties before District Court
  2. Parties should have been living separately for one year or more
  3. Parties should satisfy that they are not able to live together and

In Sureshta Devi (Smt) v. Om Prakash, it was held that “The expression ‘have not been able to live together’ in Section 13-B (1) indicates a broken down marriage with no possibility of reconciliation.”

  • Have mutually agreed to dissolve the marriage

It was held in Sushama v. Pramod, (2009), that “It is the duty of Court to identify whether the consent for divorce is obtained by force, fraud or undue influence on the very first date of the proceeding.”

Period of Interregnum

As per statutory interregnum, a period of six months between the first and final appeal is provided. The parties are expected to rethink and explore the different options of settlement, before the final appeal. The parties are expected to give second thoughts on their decision. This period of six months is also known as cooling off period.

Can the Period of Interregnum be waived?

The Supreme Court has discretionary power to waive the cooling-off period if finds suitable. The period of six months can be waived if

  1. A period of 1 year and six months has already passed for the spouses living separately
  2. The six months duration would prolong the agony of the separating spouses
  3. The spouses have entirely settled in separate lives and arrived on amicable resolutions on alimony, child custody, etc
  4. All efforts at mediation and reconciliation have failed

It was observed in Sureshta Devi v. Om Prakash, that If one party withdraws the appeal, the court no longer has jurisdiction to grant a divorce by mutual consent. The mutual consent should last till the decree is passed.

LANDMARK JUDGEMENTS

In the judgement of Ureshta Devi (Smt) v. Om Prakash, 1991, the appellant(wife) was married to the respondent on November 21, 1968. But after 6-7  months, they started living separately except for one month, due to court order. The time they stayed together under the decree, they did not live like a married couple.  They decided to file a suit for divorce by mutual consent.

The wife stated that her consent was taken forcefully and appealed for the case to be dismissed. The district court dismissed the case, which the High Court reversed, granting dissolution of marriage, even though the court had no jurisdiction. The consent of one was no longer consent.

The Supreme Court reversed marriage’s dissolution, stating that mere petition for divorce is not enough; the essential of divorce by mutual consent should be fulfilled. It was held in the case that the petition must be filed between six to eighteen months by approval of both the parties. And that the consent should be present till the declaration of the decree.

It was also held that “the expression ‘living separately’ in Section 13-B (1), means not having conjugal relationship even if living under the same roof.”

It was held in Sanjeeta Das v. Tapan Kumar Mohanty, “No court can assume jurisdiction to dissolve a Hindu marriage simply on the basis of the consent of the parties dehors grounds enumerated under Section 13 unless consenting parties proceed under Section 13-B.”

In Amardeep Singh v. Harveen Kaur, it was held that the Cooling-off period of six months directory. For determining whether the provision is mandatory or directory, language alone is not decisive, and the court must have regard to context, subject-matter and object of the condition. The court can waive off the statutory period under Section 13-B(2) in its discretion after considering the following factors:

  • the statutory period of six months specified in Section 13-B(2) in addition to the statutory period of one-year separation under Section 13-B(1) is already over before first motion itself;
  • no likelihood of reconciliation between parties;
  •  parties have genuinely settled all their differences including alimony, custody of the child or any other pending issue; and
  • whether the waiting period would only prolong the agony. Thus, the cooling-off period is a directory. It is open to the court to exercise discretion in facts and circumstances of each case where there is no possibility of parties resuming cohabitation. There are chances of alternative rehabilitation.

Moreover, in conducting such proceedings, the court can also use the medium of videoconferencing and also permit genuine representation of the parties through close relations such as parents or siblings where the parties are unable to appear in person for any just and valid reason as may satisfy the court, to advance the interest of justice.

It was opined in Hitesh Bhatnagar v. Deepa Bhatnagar, that the consent could be withdrawn before the decree of divorce is passed. An essential requirement for the grant of a divorce by mutual support is both parties’ free consent. Unless there is the complete agreement between parties for dissolution of marriage and unless the court is completely satisfied with respect, it cannot grant a decree for divorce by mutual consent.

ANALYSIS

Through section 13 B of Hindu Marriage Act, 1995, the consent of both the parties to marriage is essential and validates other conditions. As seen in cases, the consent must be till the declaration of the decree. India’s courts work to improve the broken marriage by providing the cooling-off period, which given parties to reconsider their hurried decisions.

In the case where the parties have already spent one year and six months separately and have no hope for reconciliation, the court has discretionary power to waiver the cooling- off period.

Therefore parties by mutual agreement can be granted a decree of divorce, dissolving their marriage permanently under this provision.

CONCLUSION

Marriage is considered as holy matrimony as her Hindu Mythology. With modernization, an increase in differences between the parties has made a need for more structured laws. The Hindu Marriage Act, 1995, The Divorce Act, The Special Marriage Act provide code for Dissolution of marriage for a Hindu, Buddhist, Sikh, Christian by religion.

It provides the freedom to decide their marriages future and impose certain rights and liabilities for the parties to the marriage.  Divorce by mutual consent is a concept introduced in amendments made to the Hindu Marriage Act,1995. Though being a holy ritual, considered as an agreement can be brought to an end.

Author: Falgun Wairya

Editor: Kanishka Vaish, Editor, LexLife India.

Explained: Divorce by mutual consent

Reading time: 6-7 minutes.

Marriage is considered as the union of two souls, a commitment to each other between two persons in an attempt to gain happiness and fulfil societal obligation through performing various rites and ceremonies. It is also considered as a sacrament or a civil contract between two parties. Different views are there of people on marriage, but the sole and common view is that it is a way to perform certain duties obligations.

In ancient times, marriage was considered as a permanent union of two persons and the bond which cannot be broken. Radhakrishnan commented that the marriage relationship is an indissoluble one. So, as long as we take this view it is good but if we take another view of life and see it as a way of fulfilling our desires it cannot be seen as permanent.

In recent times the situation has changed completely. Married couples could not withstand each other due to many reasons like contradictions between their ideas, way of living and many more things. To end the responsibilities, obligations, and duties, end the legal relationship divorce came to be seen as the best way to get rid of these things and terminate the marital union.

Often it is used as a way to end the relationship forcefully without the consent of another party especially women, so another dimension of divorce came into being i.e. divorce by mutual consent by parties. Since independence, it is seen that there is upliftment in the condition of women. The materialistic era has brought several changes that have changed the view of people on this issue.

Various steps are taken to ensure the better condition of women and to change the status of women in society. Divorce by mutual consent was seen as the best way to settle the dispute between the parties arising out of clashes of interest arising between them and step towards the upliftment of condition of women.  As said by Bertrand Russell, “perhaps easy divorce causes little unhappiness than any other system”.

It is seen as a way to restructure and reorganize the family and individual. Ahrons and Rodgers pointed out “While marriages may be discontinued, families-especially those in which there are children -continue after marital disruption…They do so with the focus on the two ex-spouse parents now located in separate households-two nuclei to which children and parents alike, as well as others, must relate.” So, it can be inferred that it divorce does not mean the end of everything. Divorce by mutual consent is a completely different aspect and is a very good step towards changing the family law system in India.

Ways of filing of divorce by mutual consent under religious laws.

A different group of people is governed by different laws and their procedure is also diverse. The Indian court system is governed by various acts related to divorce.

Law Hindu Law Muslim Law Christian Law Parsi Law Special Marriage Act
Under Section 13-B of the Hindu Marriage Act, 1955. . Under Shariat Law (Mubarak) and Dissolution of Muslim Marriage Act, 1939 Under Section 10-A of the Divorce Act, 1869 Under Section 32-B of the Parsi Marriage and Divorce Act, 1936.
Court Petition to the District Court together. Notice to the Chairman in writing by the Couple. Petition to the District Court together. A suit by the couple must be filed together. Petition to the District Court together.
Conditions The intended parties must be living separately for one year or more. Not specified. The intended parties must be living separately for two years or more. The intended parties must be living separately for one year or more. The intended parties must be living separately for one year or more.
Cooling Period 1 year + 6 months (not mandatory) 90 days. 1 year + 6 months (not mandatory) 1 year + 6 months (not mandatory) 1 year + 6 months (not mandatory)

Table specifying various personal laws related to mutual consent by divorce

Conditions necessary for successful granting of divorce by mutual consent

There are various steps involved in the process of granting a divorce by mutual consent. We will take into account every aspect of the divorce by mutual consent.

Withdrawal of consent after the filing of the divorce petition

A married couple can withdraw his consent even after filing of the petition. For that purpose, either of the parties can withdraw its consent before the commencement of second motion but it is also taken account into account that if any maintenance is provided after first motion then, it has to be refunded and restored to the concerning parties. If the concerning party withdraws its consent then, money received as maintenance must be returned to the other party.

  • Waiving off cooling period by the parties

There are two essentials conditions to be fulfilled for divorce by mutual consent in India. They are:-

  • The parties have to be living separately for one year.
  • Consent between the parties is essential for filing and granting of divorce by mutual consent.

These conditions need to be satisfied and under this comes another aspect i.e. Cooling Period or Waiting Period. It is defined as the period required to be entertained by the parties in a hope that there can be a chance of reconciliation and no divorce is granted to them. The first time it was seen in the case of P. Sunderraj v. P Sarika Raj where parties went for waiving of the cooling period but the court ordered that it cannot be dismissed and they must go through this period.

Then in the case of Pooja Deswal v. Sagar Deswal, it was held that the power of waiving of the cooling period does not lie in the hands of the court and the period of 6 months provided under section13-B of the Hindu Marriage Act, 1955 cannot be waived off.

Landmark judgment related to waiving of the cooling period: Amardeep Singh v. Harveen Kaur

The year of 2017 was seen as remarkable in the history of providing divorce by mutual consent. It was seen as a big step towards change in the dimension of divorce by mutual consent. The court in this year in the case of Amardeep Singh v. Harveen Kaur held that the cooling period of 6 months is not mandatory and it can be waived off.

The contesting party no longer need to observe cooling period as mentioned in section 13-B (2) of the Hindu Marriage Act, 1955. But it is upon the discretion of the court to wave off the cooling period as various guidelines need to be followed before waiving off the cooling period.

Signature of both the parties required in the divorce petition.

It is mandatory for both the parties to sign the documents and if anyone refuses out of two then, an attorney has to sign on behalf of them and the court can grant a divorce on behalf of that document only. If one of the spouses is not available to sign during second motion then, it is assumed that he agreed to the divorce and divorce will be granted. So, it is advised to be present during all divorce petitions.

Role of mediators in divorce by mutual consent.

The mechanism for mediation and alternative dispute resolution is provided in section 89 of Civil Procedure of Code which states that consent of both the parties is required in approaching mediation. The provision for mediation and conciliation is provided in section 23(2) and 23(3) of the Hindu Marriage Act, 1955 and in section 34(3) and 34(4) of the Special Marriage Act, 1954.

Also, the parties must go for mediation which was first laid down in Civil Procedure-Mediation Rules in the year 2003. Also, in the case K. Srinivas Rao v. D.A. Deepa it was laid down those parties need to go through mediation to see if there is any scope of settlements between the parties. The role of mediators is that it should always make out the best possible ways to settle a dispute between the parties and to the best interests of the party.

Shared parental responsibility.

The role of the parent is very crucial in the life of a child and it is often seen that a child is ignored often during the divorce process and he is the one who is most affected by divorce. Both the parents have to play an active role in providing better education, a healthy environment, providing better health care, etc to the child. They both have to work in the best interest of their child. It was laid down in the case of Sarita Sharma v. Sushil Sharma. The recent parenting laws are approved by Bombay and Madhya Pradesh High Courts and other states have their separate laws.

Conclusion

Considering the vital importance and necessity of marital life in society various things are kept in mind while granting a decree of divorce to the parties. Divorce by mutual consent provides an opportunity of amicable resolution of disputes between parties and saves time and money.

Various changes have occurred to the procedure of granting divorce by mutual consent and various contrasting judgments have also been passed by that. 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.

-This article is brought to you in collaboration with Sherry Shukla from Maharashtra National Law University, Nagpur.