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Divorce by Mutual Consent in India

Divorce by Mutual Consent in India

Marriage is considered as a sacred alliance entered into by two parties, whereby, they promise to stand by each other throughout their life. But indeed there are certain situations or circumstances that make impossible for these two people to continue living with each other and carry on the alliance. There may be cases in which the husband is unhappy with his wife or vice versa due to the latter’s behavior or act he commits. But, there are also conditions where both the parties mutually are unhappy with each other and are of the view that they can live together no more. Therefore, they are mutually unhappy with each other. In such a scenario, either or both of the parties can apply in the court for a divorce petition on the ground of mutual consent.

There are various grounds under the Hindu Marriage Act,1955 under which the parties can apply for divorce. One such ground is divorce by mutual consent. Divorce by mutual consent is provided under Section 13-B of the Hindu Marriage Act, 1955.

It is the simplest way to obtain a divorce legally whereby both the parties agree to have a divorce. Two aspects are of great importance in divorce by mutual consent are-

Child custody can be shared by both of the parties. Whereas when it comes to maintenance or alimony, no particular amount is specified.

Divorce by mutual consent is mentioned under section 13-B of the HMA, 1955. It reads as follows –

(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 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.

(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petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized 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.[1]

Where is the divorce petition filed?

Section 13-B of the HMA, 1955 clearly specifies that the parties seeking to obtain a divorce by mutual consent should file a petition in the district court or the family court of the city where both the parties resided.

When can the petition be filed?

A divorce petition of mutual consent cannot be filed before completion of one year of the marriage between the parties. The parties also need to show that they have been living separately since past one year or more before the presentation of the petition before the court regarding separation and also that they have not been able to live or reside under the same roof as husband and wife.

Living separately does not imply the physical existence of the parties, but, it means not being able to live as husband and wife. It may be under the same roof or different roofs. What is considered important here is that the parties have no desire to live together as husband and wife and perform matrimonial obligation.[2]

Withdrawal of the petition by either of the partner

The divorce petition by mutual consent can be withdrawn by either of the parties. A party is fully entitled to do so. This could be down during the six month period when the petition stands pending before the court. This six month time period is considered as ‘waiting period’.The waiting period is a directory in nature, and it can be brought down from 6 months( provided the mandatory requirements of s 13-B (1) are fulfilled) when all efforts at reconciliation failed.[3]

The party seeking to withdraw the petition has to file an application before the same court in which petition was filed earlier and state the reasons or grounds of why he/she intends to withdraw the petition of divorce by mutual consent. No divorce decree is provided by the court in such a circumstance.

Conclusion

Section 13-B of the HMA,1955 provides one of the most amicable ways to resolve a dispute between a husband and wife. One of the advantages is that the proceeding is expeditious and involves fewer funds. One of the most important rights that is given to parties is to unilaterally withdraw their petition, whereby the court cannot grant a divorce on the ground of mutual consent. This ensures that the divorce petition submitted by the parties is by mutual consent and not by the helplessness of either of the parties.

[1] Section 13-B of the Hindu Marriage Act, 1955.

[2] Sureshta Devi v Om Prakash (1992) AIR SC 1904.

[3] Dinesh Kumar Shukla v. Neetu AIR 2005 MP 106

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