This article is written by Durgesh Yadav of 3rd Semester of B R Ambedkar National Law University, Sonipat, an intern under Legal Vidhiya
ABSTRACT
For a long period, marriage was considered as a sacred union of two persons made in heaven. This union was unbreakable or indissolvable even after the death of persons. But sometimes God also makes some mistakes. So, not all marriages are meant to last. Maybe that union became agony for someone, so there was no need to continue the same. For this, the concept of divorce was introduced in society.
Divorce became a remedy for the affected parties to get rid of their partners. It is mainly based on two theories- (a) Fault Theory (b) Non- Fault Theory[1]
However, the process of divorce is so time-consuming and complicated. It becomes more complex when it is taken based on fault theory. It not only affects the partners but also the family and children. However, it became an easier process in cases based on non-fault theory. If both partners mutually agreed to end their marriage, then it also became easier for the partners and families to get divorced. Unlike the cases on various grounds based on Section 13(1) of the Hindu Marriage Act, 1955, it is a more cooperative and peaceful way of ending marriage.
Hereby in this article, we are going to discuss mutual consent as a ground for divorce. We will discuss the essential and procedure that is followed under this section by the Family Courts.
KEYWORDS: HMA, Mutual Consent, Section 13, Procedure, Essentials
INTRODUCTION
“Divorce by mutual consent” or “no-fault divorce” or “uncontested divorce” is based on the non-fault theory of divorce. It is a legal process by which a married couple agrees to end their marriage without blaming one another for this dissolution of marriage and agrees to an agreement on important issues like the division of property, child custody, child support, alimony (spousal support), etc. without the need for a lengthy and contentious legal battle.[2]
Mutual consent divorce encourages spouses to part ways amicably, prioritizing cooperation and understanding over conflict, in contrast to the frequently heated conflicts that emphasize blame and fault. Contrary to the combative and emotionally exhausting nature of conventional divorce proceedings, mutual consent divorce is a more modern way of ending a marriage.
DIVORCE BY MUTUAL CONSENT
It is stated that since two people choose to marry one another of their own free will, they should also be allowed to leave on their own volition. On the same reasoning, this ground is introduced in court.
When a husband and wife both concur that they can no longer cohabitate and that divorce is the best option and they file a petition for mutual divorce before the court without making any accusations against one another. This is known as a divorce by mutual consent or mutual divorce. It is mentioned under Section 13B of the Hindu Marriage Act, 1955. [3]
There are various grounds for divorce under Section 13 (1) OF HMA like adultery, desertion, cruelty, etc.[4]. They are based on the fault theory. One party blamed the other for various reasons.
But in some cases, the cases do not fall under any of the grounds mentioned in this section, and the parties don’t want to continue their marriage, and both voluntarily agree on the same, then divorce is given on the ground of mutual consent. It provides a legal basis for couples who opt to end their relationship amicably, respectfully, and with dignity.
Compared to a contested divorce, which may involve protracted legal disputes and greater legal costs, this sort of divorce is typically speedier and less expensive.
The Hindu Marriage Act of 1955, which was subsequently revised in 1976 to incorporate provisions for divorce by mutual consent, governs the idea of divorce by consent in India[5].
So, the right to divorce by mutual consent is protected by Section 13B of the Hindu Marriage Act of 1955. The spouses may jointly file a petition for divorce under Section 13B with the family court, which has the authority to grant such a divorce order under Section 13B. The requirements under which the spouses may submit a petition for the grant of divorce by mutual consent are specifically mentioned in the Section.[6]
When both spouses concur that divorce is the best course of action since their marriage has irretrievably fallen apart, the court considers it grounds for divorce. Based on the same, the court decides to dissolve the union and they can live their life separately like before.
The parties must have been living apart for at least a year before filing the petition for the same. This phrase ‘living separately’ doesn’t imply that they can’t share a home if they are filing for divorce. But they have to prove that they are not cohabiting as husband and wife. Another important component is that the parties are unable to coexist any further in their marriage and mutually decide that there is no hope of their marriage being saved.[7]
LEGAL FRAMEWORK OR REQUIREMENT FOR DIVORCE
Various acts in India govern the divorce procedure, and the requirements for filing a divorce by mutual consent may vary depending on the jurisdiction. The Hindu Marriage Act of 1955’s provisions for divorce would apply if the couple had been married under those provisions. It would apply if the marriage had been performed in accordance with the Special Marriage Act of 1954.
In this article, I am discussing the Hindu Marriage Act, of 1955. So, under this Act, some requirements must be fulfilled for seeking divorce under the ground of mutual consent. These are as follows-
- Parties should reside separately
According to Section 13(B) of the Act, the couple must have lived apart for at least a year before filing the petition to mutually dissolve the marriage. This divorce should serve as evidence that they have not cohabited and that reconciliation is no longer feasible.
The petition must be filed within one year following the parties’ one-year separation from one another. In the context of Section 13B, “living separately” does not necessarily imply physically relocating to another location. Even though the parties may reside under the same roof and in the same home, there may still be a physical separation between them.
If so, they do not qualify as living as husband and wife and must instead be considered to be living separately. In the case Sureshta Devi v. Om Prakash [8]case, the Supreme Court made it clear that residing apart from one another need not entail relocating. They can live together under the same roof, but not as a husband and wife.
- It has been impossible for parties to coexist
Another important essential is that the parties can’t live together. Mere annoyance doesn’t constitute a ground for divorce. The parties have to establish that divorce is the only resort left to them. It often happens in marriages that the partners can no longer coexist peacefully because they can’t stand one other. When that happens, they decide to separate by mutual consent.
In the case of Pradeep Pant and Anr. v. Govt. of NCT Delhi[9], the parties were wed and had a daughter. However, they were not able to live together because of differences and chose to live independently. Despite, their best attempts, they were unable to patch up their marriage and reunite as husband and wife. They filed a divorce petition for the same. The court granted divorce to them.
- They both agreed that their marriage should end
The parties may decide to give their marriage another opportunity or chance and mutually address their differences in specific circumstances. The parties may occasionally be able to come to terms during the waiting period and salvage their relationship.
The parties have a total of 18 months after the first motion has been granted to file for the second motion; if they fail to do so within those 18 months, both parties are presumed to have mutually withdrawn their consent.
Procedure underDivorceby Mutual Consent
STEP 1: Submitting a joint petition
Both parties must sign and submit a divorce petition in the form of an affidavit to the family court. The petition must mention that the parties to a marriage must have lived apart for at least a year before filing the petition. Also, on matters like property partition, alimony, child custody, and child support, both spouses must agree.
Since the petition can be submitted within the local borders of the ordinary civil jurisdiction of where the marriage was solemnized or where either of the parties presently resides, the court’s jurisdiction should not be a significant concern when filing for divorce. The parties to a marriage must have lived apart for at least a year before filing the petition.
STEP 2: First motion
The parties must appear in court and make their statements after submitting the petition. If the court is satisfied and the statements are recorded, the first motion is said to have been accepted, and the parties will have to wait six months before submitting the second petition.
The waiting period, which is legally required by Section 13B (2) of the Act, is intended to give the parties time to reflect and consider their options. Just in case they decide to alter their minds, they have been granted this opportunity to make amends and give their marriage another chance. In any case, the court might occasionally be convinced that the marriage has irretrievably gone wrong and that keeping them waiting will only make their pain worse. The court has the authority to suspend this period in the situation.
STEP: Second motion
Only after the six-month waiting period and before 18 months have passed can the second motion be submitted. Final hearings occur during this time, and new recordings of remarks are made. The divorce decision is issued following mutual agreement on the alimony and child custody (if applicable) issues. By this point, the marriage has officially dissolved, and a divorce has been granted by mutual consent.
OTHER IMPORTANT CASES
In the case of Amardeep Singh v. Harveen Kaur[10], the couple had internal conflicts there. Conflicts became increasingly bad, leading to numerous legal and criminal cases.
They agreed to settle all of their differences and file for divorce. In this case, the court held that the waiting period of six months may be waived if the court determines that the parties have resolved the issues of alimony and child custody (if any) and have been living apart for longer than the statutorily required period of at least one year.
The Honorable Supreme Court further noted that the waiting period would only serve to prolong the anguish and suffering of the parties who were no longer able to coexist in a relationship.
In the case Sureshta Devi v. Om Prakash[11], the husband acquired the wife’s approval for a divorce by deceit. The wife unilaterally canceled her permission for the divorce since she was unwilling to provide it. The Supreme Court mentioned that a party may unilaterally revoke their consent if it was not granted voluntarily.
Before concluding this work, let’s discuss the pros and cons of divorce by mutual consent.
ADVANTAGES
- Cost-effective: Divorce by mutual consent usually costs less than divorce on other grounds since mutual consent divorce takes less time and effort from the parties and requires less judicial involvement. The parties can save money on court costs and attorney fees, which can add up in disputed divorce cases.
- Less stressful: Divorce by mutual consent is often less tense and emotional than a contested divorce since the parties can work together and communicate mutually to reach an agreement.
- Faster: Divorce by mutual consent can be finalized far more quickly than a contested divorce because the parties do not need to wait for court dates or hearings. They can distribute their assets according to their schedules without the assistance of the court.
- More control: Divorce by mutual consent allows the parties more control over the terms of their divorce settlement since they can work together to develop a solution that is unique and suited to their specific needs and interests.
DISADVANTAGE
- When negotiating the terms of a divorce settlement, one spouse occasionally may have more negotiating strength or influence than the other. As a result, an agreement that does not fairly or fully represent the needs or interests of both parties may be reached.
- Even while a divorce by consent can be less expensive than a contested divorce, there is a chance that the parties won’t get the same level of legal advice and representation
- It necessitates a great degree of communication, cooperation, and trust between the couples, which may not always be feasible or realistic.
- There may be disagreements or misunderstandings if the parties do not completely comprehend the terms of their divorce settlement or if crucial information is omitted or rendered confusing
CONCLUSION
Compared to typical divorces, which are frequently acrimonious and emotionally exhausting, mutual consent divorce gives spouses a more amicable and cooperative way to end their marriage. This method enables partners to end their union with respect and dignity intact by emphasizing understanding and agreement above blame.
Although mutual consent divorce may not be appropriate for every partnership or circumstance, its focus on understanding and compromise offers a ray of hope through what may be a terrible time in one’s life. Couples that adopt this strategy are better able to reconstruct their lives with greater grace and less bitterness as they move forward. In the end, mutual consent divorce is proof that respect and kindness can triumph even in the end of a marriage.
Reference
- Sushant Biswakarma, Divorce by mutual consent, IPleader, https://blog.ipleaders.in/mutual-consent-divorce/#:~:text=The%20Hindu%20Marriage%20Act%2C%201955%20enshrines%20the%20right%20to%20divorce,of%20divorce%20under%20Section%2013B.
- Patna Law School, Divorce Under Hindu Law https://www.patnalawcollege.ac.in/econtent/1604508999217.pdf
- Deyasini Chakrabarti, Divorce under Hindu Marriage Act, 1955, IPleader, https://blog.ipleaders.in/divorce-under-hindu-marriage-act-1955/
- Pranav Bhaskar, Divorce by Mutual Consent in India: A Comprehensive Guide, Legal Service India(19 Sep. 23) https://www.legalserviceindia.com/legal/article-12831-divorce-by-mutual-consent-in-india-a-comprehensive-guide.html#:~:text=The%20concept%20of%20divorce%20by,for%20divorce%20by%20mutual%20consent
[1] Patna Law School, Divorce Under Hindu Law (19 September 2023) https://www.patnalawcollege.ac.in/econtent/1604508999217.pdf
[2] Deyasini Chakrabarti, Divorce under Hindu Marriage Act, 1955, IPleader, (19 Sep. 23) https://blog.ipleaders.in/divorce-under-hindu-marriage-act-1955/
[3] Hindu Marriage Act,1955, Section 13 B, No.25, Act of Parliament, 1955 (India)
[4] Hindu Marriage Act,1955, Section 13, No.25, Act of Parliament, 1955 (India)
[5] Pranav Bhaskar, Divorce by Mutual Consent in India: A Comprehensive Guide, Legal Service India(19 Sep. 23) https://www.legalserviceindia.com/legal/article-12831-divorce-by-mutual-consent-in-india-a-comprehensive-guide.html#:~:text=The%20concept%20of%20divorce%20by,for%20divorce%20by%20mutual%20consent.
[6] Sushant Biswakarma, Divorce by mutual consent, IPleader, (19 Sep. 23) https://blog.ipleaders.in/mutual-consent-divorce/#:~:text=The%20Hindu%20Marriage%20Act%2C%201955%20enshrines%20the%20right%20to%20divorce,of%20divorce%20under%20Section%2013B.
[7] Sushant Biswakarma, Divorce by mutual consent, IPleader, (19 Sep. 23) https://blog.ipleaders.in/mutual-consent-divorce/#:~:text=The%20Hindu%20Marriage%20Act%2C%201955%20enshrines%20the%20right%20to%20divorce,of%20divorce%20under%20Section%2013B.
[8] Smt. Sureshta Devi vs Om Prakash 1992 AIR 1904
[9] Pradeep Pant and Anr. v. Govt. of NCT Delhi MAT.APP.19/2012
[10]Amardeep Singh v. Harveen Kaur CIVIL APPEAL NO. 11158 OF 2017
[11] Sureshta Devi v. Om Prakash 1992 AIR 1904
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