DIVORCE BY WAY OF MUTUAL CONSENT

§Introduction
The main objective of the marriage is to ensure a long lasting healthy relationship between the spouses. Earlier the women used to stay in the marriage as they considered it their duty to do so and the then customary laws prevailing in the society did not allow the spouses, especially the wife, to separate from her husband and leave her matrimonial house.

This is so as under the Hindu shastras, marriage is considered as a sacrament, which means that it is one of the rituals of the god wherein the parties bind themselves in the name of god or in the name of the supreme
force to stay together.

It is also to be noted that Hindu Law has recognized the marriage as sacrament and not a mere formality or a contract between the Husband and Wife.
Nevertheless, there exists difference, in Muslim law marriage is most often regarded as a contract between the parties, therefore, it is because of this reason that Divorce is prevalent amongst Muslim sects.

Hindu Marriage Act, 1955, reason for enacting.

In the recent past there has been a great change in the laws one of them is Hindu Marriage Act, 1955 (also referred to as HMA). Today the act has become liberalized as compared to the strict principles set out in Vedas and
Upanishads. As the laws are continually required to change with the change in society.

Strict divorce laws may hold a marriage de jure but de facto the parties become mentally and emotionally divorced from each other when relations become strained beyond tolerance. What preserves and sustains a marriage
in true sense is not the fact that legally it subsists or that morally the couple is impelled to continue in it. It is the reality and the sincerity with which the bond is kept intact which matters. A continuous study of the divorce laws over a period of decades brings us to the conclusion that obtaining a divorce under the laws today is very time
consuming and a very lengthy process involving judicial jargon.

The parties more often resort to mud slinging and levelling allegations upon each other, this results in worsening the already strained relationship between the spouses thereby, leaving less room for settlement. and even after all this mud slinging the parties are not guaranteed that they will be allowed to live separately. It has been observed in some cases that due to the short of evidence the court denies divorce to the spouses, thereby leading to damaged
marriages as dangling.

The reason for enacting mutual divorce under Hindu Marriage Act, 1955 is to save the parties from levelling false allegations upon each other and to avoid denigration.

However, when this act was tabled in the parliament it was not allowed to pass by some women as they felt that this act would cause serious injury to the women. Another reason was that the women’s organisations felt that this
would be a pleasure tool in the hands of men and would do more harm than good to the society.

Provision for Divorce by Mutual Consent under HMA, 1955.
The Marriage Laws (Amendment) Act, 1976 added section 13B to the Hindu Marriage Act thereby introducing mutual consent as a ground for divorce. Prior to this act the provision for divorce by Mutual Consent was contained in

Special Marriage Act, 1954. Requirements which are required under the act for setting aside marriage
mutually are as follows: –
1. The parties must be living separately for period longer than one year. This leads to the presumption that the parties do not intend to stay together and continue their marriage, therefore, the law allows them to take divorce and bring an end to their matrimonial home.
2. They have not been able to live together.3. They have mutually agreed to have their marriage dissolved.

Pre-requisites in Divorce by Mutual Consent.
The court shall not upon the request made by the parties just rush to giving effect to divorce by mutual consent, rather, the court must first inquire that whether there is any scope for bringing the parties together.

The court is required to wait for a period of 6 months before continuing and adjudicating the matter, but, the court cannot wait for a period longer than 18 months to adjudicate the matter. In the meantime, the court must make
every attempt to iron out the difference between the parties.

The time is given to provide an opportunity to both the parties to withdraw their application jointly. In this transitional period one of the parties may have a second thought and change the mind not to proceed with the petition1.

The court if based on its preliminary finding is of the view that there is a scope of settlement between the parties or the demand of the parties is of such a nature that it can be resolved by a third party, in such a case the court is
required to send the same to a third person for mediation between the parties. Mediator is appointed by the court. The mediator tries to settle the disputes between the parties. Mediator is also required to submit its final report for the consideration of the court. If the court finds that the mediation has failed, then the court is required to take necessary steps, all endeavour should be made to save matrimonial home and to iron out the differences between the parties.

Waiver of wating period.
the Supreme Court held that a right can be waived by the party for whose benefit certain requirements or conditions had been provided for by a statute subject to the condition that no public interest is involved therein. Whenever
waiver is pleaded it is for the party pleading the same to show that an agreement waiving the right in consideration of some compromise came into being. Statutory right, however, may also be waived by his conduct.2

Jayashree v. Rameslh3
A wife had filed a petition for divorce or, in the alternative, for judicial separation on various grounds. Later, this was withdrawn and on the same day, a joint application for divorce by mutual consent under section 13B was filed.

The parties stated in the petition stated that it was impossible for them to live together and that both of them had mutually agreed that the marriage be dissolved.

However, during the transitional period, that is, after six months and before 18 months, the husband changed his mind and made an application to the district court saying that he did not want to give divorce to his wife. His
argument was that he was very indecisive and wavery at the time of the joint application and realised thereafter that they could live together amicably. The wife, however, was firm in her earlier stand and wanted divorce. The district
court under these circumstances, refused to dissolve the marriage.

The wife appealed to the High Court. The main issue was whether a party to a joint divorce petition could withdraw his or her consent to the divorce. After consideration of the provisions of section 13B and order XXIII of the Code
of Civil Procedure 19084, the court concluded that such a petition could not be withdrawn without the consent of both the parties.

In this case since the wife, who was a party to the joint petition, had not consented to the withdrawal or abandonment of the petition, the same was proceeded with. The court held that the crucial time for the consent for divorce under the section was the time when the petition was filed. If the consent was free and not vitiated, it was not possible for any party to nullify the petition by withdrawing the consent. In view of this, divorce by mutual consent was decreed.

To put it simply, a spouse cannot withdraw the consent and that the crucial time for giving consent is the time of application.

What if the due procedure is not followed?

Kerala High Court has held that an agreement to dissolve a marriage in derogation of the provisions of the 1955 Act is violative of the public policy of India5.

 

END NOTES

  1.  Hitesh Bhatnagar v. Deepa Bhatnagar, (2011) 5 SCC 234.
  2. Krishna Bahadur v. Purna Theatre, (2004) 8 SCC 209. [at para 10].
  3. A.I.R. 1984 BOM 30.
  4. Rule 5 – Restriction on withdrawal of a petition or claim by one petitioner without the consent of the other.
  5. K.V. Janardhanan v. N.P. Syamala Kumari, 1990 SCC Ker 13.

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