Divorce by Mutual Consent

• Under Hindu Law marriage is a sacrament and an eternal union. 
• However, the grounds of divorce were introduced by the Hindu Marriage Act, 1955 (HMA).  
• Divorce by mutual consent is one of the grounds of divorce that was introduced later by way of an amendment in the HMA.  

Divorce By Mutual Consent 

• Divorce by mutual consent falls under no fault theory where the parties do not have to prove fault on the part of another person. 
• Under Hindu Law divorce by mutual consent was added by Section 13B which was included by way of Amendment by the Marriage law (Amendment) Act, 1976 and it came into force from 25th May 1976
  
  

Divorce by mutual consent allows a married couple to end their marriage amicably, without assigning blame to either party. It is based on the no-fault principle, recognising that irreconcilable differences can make cohabitation impossible. Governed by Section 13B of the Hindu Marriage Act, 1955, it requires both spouses to jointly file a petition declaring they have lived separately for at least one year, cannot live together, and mutually agree to dissolve their marriage. 

The process involves two motions: the first to file the petition and the second after a statutory waiting period of six months (which can be waived in certain cases). Divorce by mutual consent ensures a dignified and harmonious resolution to marital disputes.

Provisions of Section 13B Hindu Marriage Act, 1955 and Divorce by Mutual Consent

Section 13B(1): Filing the First Motion

To initiate the process, a joint petition must be filed by both spouses before a family court having jurisdiction. The petition must satisfy the following conditions:

• Living Separately for One Year or More: The parties must have lived separately for at least one year. Importantly, “living separately” does not necessarily imply residing in different locations. It signifies a cessation of marital relations, as clarified by the Supreme Court in Sureshta Devi v. Om Prakash.
• Inability to Live Together: The petition must declare that the spouses are unable to live together due to irreconcilable differences.
• Mutual Agreement to Dissolve the Marriage: Both parties must mutually agree that the marriage should be dissolved.
  
  

Section 13B(2): Filing the Second Motion

After filing the first motion, a cooling-off period of six months is prescribed. During this time, the parties are encouraged to reconsider their decision. If reconciliation efforts fail, the second motion can be filed, subject to the following:

• Timeline: The second motion must be filed no earlier than six months and no later than eighteen months after the first motion.
• Conditions for Decree: The court, after hearing the parties and ensuring the truthfulness of their statements, may pass a decree dissolving the marriage.

The primary objective of this statutory procedure is to allow spouses a reasonable period to introspect and explore the possibility of reconciliation before terminating the marriage.

Judicial Interpretations of Section 13B

Over the years, Indian courts have interpreted Section 13B to address practical challenges faced by parties seeking divorce by mutual consent.

Withdrawal of Consent Under Section 13 B 

• Hitesh Bhatnagar v. Deepa Bhatnagar (2011): 
  • The Court is bound to pass a decree of divorce declaring the marriage of the parties to be dissolved if the following conditions are met: 
    • A second motion of both the parties is made not before 6 months from the date of filing of the petition as required under subsection (1) and not later than 18 months 
    • After hearing the parties and making such inquiry as it thinks fit, the Court is satisfied that the averments in the petition are true; and 
    • The petition is not withdrawn by either party at any time before passing the decree; 
• Smruti Pahariya v. Sanjay Pahariya (2009): 
  • It is only on continued mutual consent of the parties that a decree of divorce under Section 13 B can be passed. 
  • The court has to be satisfied about the existence of mutual consent between the parties on some tangible materials which demonstrably disclose such consent.

Cooling off Period  

• Under Section 13 B if the petition is not withdrawn post 6 months (and not later than 18 months) from the date of presentation of petition the Court may pass a decree of divorce. 
• Thus, the parties are given a cooling off period of 6 months. 
• The question that is posed is whether the cooling off period is mandatory or directory? 
  • Amardeep Singh v. Harveen Kaur (2017): 
    • A 2- judge bench comprising of Hon’ble Adarsh Kuamr Goel, Justice and Hon’ble Uday Umesh Lalit, Justice held that in determining if the period is directory or mandatory the language alone is not decisive. Rather the Court has to give regard to the context. 
    • The Court held that the cooling off period can be waived off only after considering the following factors: 
      • 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/Section 23(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 only prolong their agony. 
  • Shilpa Shailesh v. Varun Sreenivasan (2023): 
    • A Constitution Bench held that Supreme Court can exercise power under Article 142 (1) of the Constitution and grant divorce by mutual consent dispensing with the waiting period prescribed under Section 13 B. 
    • The Court held that the cooling off period is not to stretch the already disintegrated marriage or to prolong the agony of the parties. 
    • The Court held that apart from the factors mentioned in the case above the Court should also ascertain whether the parties have freely on their own accord arrived at a genuine settlement that took care of alimony, maintenance and other matters. 
    • Thus, the Court held that Section 13B does not put any fetters on the powers of the Court to grant a decree of divorce by mutual consent.