DIVORCE BY MUTUAL CONSENT
Section 13B of the HINDU MARRIAGE ACT,1955 talks about Divorce by mutual consent,
1) 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, whether such marriage was solemnised before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 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.
(2) On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnised 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.
(i) The period of 6 to 18 months provided in section 13B is a period of interregnum which is intended to give time and opportunity to the parties to reflect on their move. In this transitional period the parties or either of them may have second thoughts; Suman v. Surendra Kumar, AIR 2003 Raj 155.
(ii) The period of living separately for one year must be immediately preceding the presentation of petition. The expression living separately’ connotes not living like husband and wife. It has no reference to the place of living. The parties may live under the same roof and yet they may not be living as husband and wife. The parties should have no desire to perform marital obligations; Sureshta Devi v. Om Prakash , AIR 1992 SC 1904.
(iii) The period of six to eighteen months time is given in divorce by mutual consent as to give time and opportunity to the parties to reflect on their move and seek advice from relations and friends. Mutual consent should continue till the divorce decree is passed. The court should be satisfied about the bona fides and consent of the parties. If there is no consent at the time of enquiry the court gets no jurisdiction to make a decree for divorce. If the court is held to have the power to make a decree solely based on the initial petition, it negates the whole idea of mutuality. There can be unilateral withdrawal of consent. Held, that since consent of the wife was obtained by fraud and wife was not willing to consent, there could be unilateral withdrawal, of consent; Sureshta Devi v. Om Prakash, AIR 1992 SC 1904.
According to the MUTUAL CONSENT THEORY of Divorce, parties to marriage are as free to dissolve the marriage as they are free to enter. It may happen that two parties who have entered into a marriage with free consent may, later on, realize that they made a mistake and now they cant live together harmoniously . The very basis of marriage is mutual fidelity , and if for any reason the parties feel that mutual fidelity cannot continue , they should have freedom to dissolve the marriage. Also, an unhappy family is a breeding ground for delinquent children. In short, such a marriage is neither in the individual nor in the social interest .
WITHDRAWL OF CONSENT
One of the parties may withdraw his/her consent at any time before the passing of decree, even after expiry of 18 months from date of filing of petition; Hitesh Bhatnagar v Deepa Bhatnagar.
IMPORTANT JUDGEMENTS ON DIVORCE BY MUTUAL CONSENT:
1) Smt Sureshtha devi v Om Prakash
2) Suman v Surendar kumar
3) Smruti Pahariya v Sanjay Pahariya
4) Dinesh Gulati v Ranjana gulati
5) Hirabai Bharucha v Pirojshah Bharucha
6) Rajesh R nair v Meera Babu
7) Mr Prakash Alumal kalandari v Mrs jahnvi Prakash kalandari
8)Jyoti v Darshan Nirmal jain
9) Amardeep singh v Harveen kaur
Whether Divorce Decree by Consent is Appealable?
In a recent case decided by the High Court of Allahabad, the court has opined that where the consent itself is disputed and is not said to be genuine the same can be assailed by way of appeal. Here it would be relevant to throw some light on the law prevailing in context of appeal against the decree passed by the consent of parties. Section 19(2) of the Family Courts Act ,1984 against a decree passed under section 13-B of the Hindu Marriage Act ,1955 by mutual consent?
Hence , the intrinsic issue that fell for consideration by the court was whether an appeal would lie under section 19 of the Family courts Act, 1984 against a decree passed under section 13 B of the Hindu Marriage Act ,1955 by mutual consent?
The court in view of the facts and circumstances of the case held that a consent decree or order cannot be assailed by way of appeal but where the consent itself is disputed and is not said to be genuine, bonafide or free it becomes the solemn duty of the court to hold an inquiry in this respect before proceeding to pass a decree of divorce.
JUDGEMENT WRITING:
AMARDEEP SINGH v HARVEEN KAUR
In this Landmark case , the Supreme Court rendered a noteworthy statement by holding that it is not compulsory to wait/cool off 6 months as proposed under section 13B(2) of the Hindu Marriage act. The Supreme Court held that the time of interregnum or cooling off of 6-18 months is not mandatory but only a clause of the list , which can be waived in some circumstances. Furthermore the court noted that the ,in view of this, the courts may exercise their flexibility , based on the facts and circumstances in each event, and waive the stipulated time in which there is no chance of resuming the cohabitation and alternative recovery is possible.
Conclusively, Consensual divorce is the stage where the partners dissolve their relationship on their own. The relationship of every marriage is different, yet giving a new perspective in the consensual divorce, this cooling-off period will have a positive impact on society through legislation. In a Society, whenever a marriage gets a divorce, we only think about the suffering of children , but sometimes breaking the broken relationship and living with dignity is much more significant in one’s life. Divorce with mutual consent is the most effective way to dissolve a marriage.
