A CRITICAL APPRAISAL OF DIVORCE BY MUTUAL CONSENT UNDER INDIAN LAW

By- Adhish Chandra Saxena & Diksha Gupta

Introduction

The ground of divorce by mutual consent was embedded in the Hindu Marriage Act, 1955 by an amendment in 1976, by including Section 13B[1]. Section 13B of the Hindu Marriage Act[2], 1955 runs:

“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 marriage together, whether such marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976, on the ground 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.”

On the movement of both the parties made not sooner than a half year after the date of the presentation of the appeal to alluded to in subsection (1) and not later than eighteen months after the said date, if the petition is not pulled back meanwhile, the court should, on being fulfilled, in the wake of hearing the parties and in the wake of making such petition as it supposes fit, that a marriage has been solemnized and that the averments in the petition of are true, pass a pronouncement of divorce announcing the marriage to be broken down with impact from the date of the announcement.

Section 28 of the Special Marriage Act, 1954 which likewise manages divorce on grounds of mutual consent is pari materia to the above section.

Requirements of divorce by mutual consent

The necessities which must be met to look for divorce under the Hindu Marriage Act are as per the following:

  1. The parties have been living separately for a time of no less than one year
  2. They have not possessed the capacity to live respectively, and
  3. They have mutually agreed that marriage ought to be resolved.[3]

The main prerequisite is that the parties ought to be living separately for a time of no less than one year before filing the divorce appeal. It is important to comprehend what does the expression ‘living separately’ implies.

Living Separately

The Supreme Court of India on account of Sureshta Devi v. Om Prakash[4] has precluded “that the expression living separately connotes not living like a couple, merely husband and wife. It has no reference to the place of living. The parties may live under the same rooftop by way of circumstances, but they may not be living as a couple. What is by all accounts vital is that they want to perform conjugal commitments or marital obligations and with that, they have been living separately for a time of one year immediately preceding the presentation of the petition.”

It has been precluded by Supreme Court in different cases that the expression “have been living separately’ does not really implies physical division or living separately and separated what is material is that no conjugal commitments are performed between the mates and they are not living respectively as a husband and wife.

Parties Have Not Been Able To Live Together

In the wake of setting up the main necessity that the parties were living separately for one year or more, the second point that must be built up is that the parties have not possessed the capacity to live together respectively.

In Sureshta Devi v. Om Prakash[5], the Supreme Court watched that the expression “have not possessed the capacity to live together” appears to show the idea of separated marriage to such an extent that there is no probability of any compromise.

The parties require not to set up the way that they have not possessed the capacity to live respectively. The very certainty that they have displayed an appeal by mutual consent is demonstrative of this reality that they have not possessed the capacity to live together[6]. However, it is exceptionally basic to decide if assent given by both the parties is free and not got by any sort of power, extortion, or undue impact.

Subsequent to fulfilling the over two necessities and recording a joint petition for divorce by mutual consent, the parties must sit tight for no less than a half year, normally named as the “cooling period”.

After the finish of this period, if the underlying appeal is not pulled back by both of the parties or together, both the parties may move court by method for joint movement inside the stipulated time of year and a half from the underlying date of the recording of the joint petition. This period is given to parties to reexamine their choice.

The accompanying parts of this arrangement have been liable to legal interpretation:[7]

Whether the waiting period of six months is mandatory or directory?

There have been clashing judgments on this respect whether the courts ought to obligatorily sit tight for a time of a half year as given in the subsection (2) of Section 13B.

In the Grandhi Venkata Chitti Abbai[8]case, the court watched that-“If Section 13-B (2) is perused as required, the very reason for changing the approach of pronouncement of divorce by mutual consent will be disappointed all the more so when the parties began living separately for an impressive time. Subsequently, s 13-B (2) however is obligatory in the frame is catalog in substance.

In like manner, on account of Dinesh Kumar Shukla v. Neeta,[9] it was held that the holding up period is a registry in nature and it can be brought down from a half year (gave the obligatory necessities of s 13-B (1) are satisfied) when all endeavors at compromise fizzled.

However, on account of Hitesh Narendra Doshi v. Jesal Hitesh Joshi,[10] it was held that “the arrangement has an unmistakable reason and question, i.e. offering time to the parties for thoughtfulness and compromise. Reason and protest gazes at us so plainly by the dialect communicated in s 13-B (2) of the Act victimizing endlessly the privilege of the court from considering the petition of sooner than a half year.”

On account of Ashok Hurra v. Rupa Ashok,[11] it was held that “in the exercise of its exceptional powers under Article 142 of the Constitution, the Supreme Court can give alleviation to the parties without sitting tight for the statutory time of a half year stipulated in s. 13-B of the Act. This principle of unrecoverable separation of marriage is not accessible even to the High Courts which don’t have powers like those practiced by the Supreme Court under Article 142 of the Constitution.”

Along these lines, the courts have been slanted more towards forgoing off this period if the condition of the case demands so and where there is no possibility of compromise between the parties. Additionally, the Supreme Court by method for its remarkable powers as given under Article 142 of the Indian Constitution can give divorce without sitting tight for a half-year on the off chance that it is fulfilled that the marriage is hopelessly separated.

In any case, this power is restricted just to the Supreme Court. There is still vulnerability whether High Courts and Family Courts need to obligatorily sit tight for a time of a half year. In any case, as it is evident from many situations where there is no plausibility of compromise between the parties and the marriage has been separated hopelessly, the courts ought to take after the soul of law more than the formal prerequisites of the section.

Whether consent can be unilaterally withdrawn?

There have been differentiating judgments on this issue. The contention is that since under this section the two parties need to record a joint appeal to for divorce how might one gathering singularly pull back from it.

Additionally, one of the motivations behind giving an era of a half year is to enable parties to reconsider their choice, and in the event that one of the gatherings chooses to pull back from it, why should it not be permitted to do as such.

In Jayashree Ramesh Londhe v. Ramesh Bhikaji,[12] the court held that once a joint appeal by mutual consent was recorded, no gathering could pull back from it without the assent of both the parties.

In like manner, in Nachhattar Singh v. Harcharan Kaur,[13] it was held that-“If both the parties had deliberately agreed to record the appeal to for dissolving the marriage by mutual consent and every single other condition said in sub-Section (1) of section 13-B of the Act are satisfied, it won’t be interested in a gathering to pull back the assent.”

Then again, in Sureshta Devi v. Om Prakash[14], the Court has held that petition of divorce can be pulled back singularly. It was held for this situation that on the off chance that one of the parties pulls back its assent the Court can’t pass an announcement of divorce by mutual consent.

The Court held that “if the declaration is exclusively in light of the underlying appeal it invalidates the entire thought of commonality and assent for divorce. Mutual agreement to divorce is the sine qua non for passing a pronouncement for divorce under Section 13-B. Mutual consent should precede till the divorces proclaim is passed.”[15]

In any case, in a current judgment of Supreme Court on account of Anil Kumar Jain v. Maya Jain[16] it was held that-“Under the current laws, the assent given by the parties at the season of the recording of the joint petition of for divorce by common agree needs to subsist till the second stage when the appeal to comes up for orders and a pronouncement for divorce is at long last passed and it is just the Supreme Court, which, in the exercise of its exceptional powers under Article 142 of the Constitution, can pass petitions to do finish equity to the parties.”

The Supreme Court however plainly communicated that exclusively utilize the power under Article 142 just in unique conditions, in typical conditions the arrangements of the statute must be offered impact to.

The law as clarified in the Sushreta Devi’s case still holds great that is the parties can pull back assent singularly. Be that as it may, the Supreme Court utilizing its energy as given under Article 142 of the Constitution can give divorce regardless of the possibility that the spouse or husband pulls back its ascent amid the procedures in the lower court and before the death of the pronouncement.

Whether mere silence at the second stage would tantamount to withdrawal?

In the event that the parties who have petitioned for divorce under mutual consent and after the finish of the half-year time frame what could possibly be done both of them don’t turn up. Will it add up to the withdrawal of assent?

Rajasthan High Court on account of Suman v. Surendra Kumar[17] has addressed these issues. For this situation, the spouse in the wake of documenting a joint assent petition for divorce did not show up for hearings. The family court held that no pronouncement could be passed without both parties.

In advance, it was held by the court that-“When one gathering has himself left the issue for derivation, the induction should be attracted the support of assent as opposed to for nonattendance of assent.” It was held that quiet can’t be taken to add up to the withdrawal of assent.

Conclusion

Through this paper, we have examined Section 13-B of the Hindu Marriages Act. Divorce by mutual consent gives a chance of genial determination of question amongst parties and spares time and cash.

The necessities as given under this Section are that before recording a joint petition for divorce parties must be living separately for a time of no less than one year. As we specified out, before living separately, does not really indicates physical division, what is basic is that parties are not satisfying conjugal commitments and not living as a couple.

The second prerequisite is that the parties have not possessed the capacity to live respectively. The way that both parties have documented a joint appeal by mutual consent is characteristic of the face that parties have not possessed the capacity to live respectively.

Just thing that is vital is that the assent has been gotten uninhibitedly and not by method for power, misrepresentation or undue impact as the entire reason for mutual consent will be vitiated if the assent is not free.

After parties have documented a joint appeal for divorce satisfying all the imperative conditions they are given a day and age of a half year and not over eighteen months after which they need to record a moment movement and courts subsequent to hearing the parties and investigating the averments in the petition of pass a declaration of divorce.

The three purposes of the dispute are that whether the holding up time of a half year is compulsory for the registry, the second is that can parties singularly pull back their assent, and third that whether quiet at the second stage would add up to the equivalent to withdrawal.

There have been differentiating judgments on the initial two issues. Distinctive high courts have received diverse measuring points in the elucidation of Section 13-B. Some High Courts have held that the holding up time of a half year is compulsory according to the Section while some High Courts have embraced the soul of law more than the specialized expressions of the section and have decided out that the period is catalog if there is zero chance of compromise between the parties.

Be that as it may, the Supreme Court utilizing its remarkable powers under Article 142 of the Constitution can pass the declaration of divorce without sitting tight for a time of a half year. Additionally, the Supreme Court on account of Sushreta Devi has decided out that the appeal of divorce can be pulled back singularly. On the third issue, the courts have decided out that hush of not showing up for hearings won’t add up to the withdrawal of assent.


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