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Divorce still serves as a taboo word in our Indian Society and is often seen as bringing disrespect to the entire family. However, the dynamics existing between a couple are better known to them and divorce is preferred wherever co-existence is no more than a mere formality.
The amendment of 1976 inserted section 13B in Hindu Marriage Act, 1955, thereby providing people of India with a different recourse. Divorce by mutual consent allows couples that are agreeing upon ending the marriage to obtain a divorce in a hassle-free manner and without indulging in a long drawn litigation process with some pre and post-conditions.
Statutory provision: Section 13B, Hindu Marriage Act, 1955
That the parties making petition should be living separately for at least a period of 1 year or more immediately preceding the presentation of the petition;
[As interpreted by the Supreme in Sureshta Devi v. Om Prakash (AIR 1992 SC 1904): The expression ‘living separately' means 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.]
That the marriage was solemnized properly under the Hindu Marriage Act, 1955; and
That the consent has been drawn freely from both the parties for divorce.
That the mutual consent should exist continuously till the decree for divorce has been passed. [As observed by the Supreme Court in Sureshta Devi v. Om Prakash (AIR 1992 SC 1904): Mutual consent should continue till the divorce decree is passed. The court should be satisfied with the bona fides and consent of the parties. If there is no consent at the time of inquiry the court gets no jurisdiction to make a decree for divorce.]
How is it different from other types of divorce?
Divorce in India is mainly of two types:
Mutual Consent Divorce
The former should always be preferred over later. The question arises as to why such a preference should be made? The following table of differences might prove helpful:
|No.||GROUNDS OF DIFFERENCE||CONTESTED DIVORCE||MUTUAL CONSENT DIVORCE|
|1.||Time Period||No fixed time period. The parties have to be present before the court for as many times as it seeks.||The maximum cooling off period between the first and second petition is 18 months after which on presentation of second petition, and satisfaction of court, divorce decree can be granted.|
|2.||Court Proceeding||The distressed spouse has to file in court and a lengthy procedure of evidence and examination till the satisfaction of court takes place which is often cumbersome.||Parties come to court with prior agreement on following: terms of divorce; maintenance/alimony; custody of child/children; and property. This makes the role of court very limited and process hassle-free.|
|3.||This option is both costly and lengthy as fees of advocates keeps on adding up as paperwork and number of hearings increase.||This is comparatively much less costly as there is limited paperwork and argumentation due to the existence of prior agreement.|
The section on mutual consent divorce provides for a simpler way of getting a divorce. It elaborately lays down the requirement of living separately for minimum 1 year and also provides for a cooling off period from 6 months to 18 months from the date of presentation of a petition of divorce. The section thus can be seen as a middle path for easing divorce and reconciliation by giving ample opportunity to rethink. The courts are also expected to make every effort to sustain marriage (Jyoti v. Darshan Nirmal Jain (AIR 2013 Gujarat 2018)).
The process requires filing of petition (under section 13B of the Hindu Marriage Act, 1955) before court with affidavits by both parties as an affirmation that they haven’t been able to live together as husband and wife for a year (or more as the case may be) and hence give mutual consent to opt for divorce. The mutual agreement should encompass terms of a settlement related to all rights and obligations, namely:
Custody of child (can be either joint/shared or exclusive);
Maintenance/Alimony (no maximum or minimum limit prescribed);
Litigation costs; and
The divorce petition can be made in a family court of a district at any of the following places:
Place where marriage was solemnized;
Place where husband and wife last cohabited; or
Place where a wife is residing at the time of presentation of the petition.
The court on receiving a petition for mutual consent divorce will record statements of both the parties. In case a party is unable to attend the court proceedings, any person on whom power of attorney has been bestowed (preferably a family member) can be present. On a recording of statements, the first motion stands granted.
Following this a cooling off period of 6 to 18 months from the date of presentation of the first petition is granted. In Suman v. Surendra Kumar (AIR 2003 Raj 155), the court observed as under:
“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.”
If during the cooling off period the consent subsists, then on completion the parties continue with second motion wherein the parties have to compulsorily be present in the court to confirm their consent by recording statement. Hereinafter, the court on being satisfied after hearing parties can pass a decree to dissolve the marriage.
The court cannot presume consent if one of the parties does not appear after six months (Smruti Pahariya v. Sanjay Pahariya (2009) 13 SCC 338).
The terms of the settlement should not be against public policy (Hirabai Bharucha v. Pirojshah Bharucha AIR (32) 1945 Bombay 537).
The following procedure of divorce is only for Hindus (includes Sikh, Jain and Budh), Christians (Section 10-A of the Divorce Act, 1869: not living together for two years or more), Parsis (Section 32-B of the Parsi Marriage and Divorce Act, 1936), and people who come under the Special Marriage Act (Section 28 of Special Marriage Act, 1954). For Muslims, the procedure mentioned in Mubara’at under Shariat Law and Dissolution of Muslim Marriages Act, 1939 is to be followed.
The remarriage can be done after a lapse of three months from the passing of decree if no appeal has been made.
The total time taken in granting a divorce from the date of filing of a petition can vary from six months to one year but varies on a case to case basis.
Cooling off period is seen as a chance of reconciliation being provided to the parties before granting the decree of divorce. However, under certain circumstances, it is allowed to be waived off.
In the interest of justice under Article 142 of the Constitution of India, when parties have been litigating for long and a lot of time has already lapsed, and then on opting for mutual consent divorce an additional period of six months is not advised. (Anil Jain v. Maya Jain, Anjana Kishore v. Puneet Kishore)
The Supreme Court in Amardeep Singh v. Harveen Kaur (Civil Appeal No. 11158 of 2017 on September 12, 2017) held that the cooling-off period provided is not mandatory but a directory provision and thus can be waived off from case to case basis. The following circumstances were laid down:
The statutory period of six months specified in 13B(2)in addition to the statutory period of one year under Section 13B(1) for separation of parties is already over before the first motion itself;
That all efforts for mediation/conciliation to reunite the parties have failed and there is no likelihood of success in that direction by any further efforts;
That the parties have genuinely settled their differences including alimony, custody of a child or any other pending issues between the parties
That the waiting period will only prolong their agony.
The waiver application can be filed one week after the first motion, giving reasons for the prayer for waiver.
If the above conditions are satisfied, the waiver of the waiting period for the second motion will be at the discretion of the concerned Court.
That as the period mentioned in Section 13B(2) is not mandatory but directory, it will be open to the Court to exercise its discretion in the facts and circumstances of each case where there is no possibility of parties resuming cohabitation and there are chances of alternative rehabilitation. The Court also stated that such proceedings can also be conducted through video conferencing.
Queries related to consent
Is it possible for a party to withdraw consent while the petition is pending?
The court has a duty to satisfy itself that the consent given by the parties continues uninterruptedly till the passing of decree. The intervening period provided gives either party the right to withdraw their consent unilaterally following which the court loses its jurisdiction to pass the decree.
However the same can be allowed only if the following conditions are fulfilled:
(Mr.Prakash Alumal Kalandari v. Mrs.Jahnavi Prakash Kalandari (AIR 2011 BOM 119)).
What will happen to the other party in case one party withdraws consent?
The aggrieved party can make sure that the court looks into the conditions required to grant withdrawal and can also object if any agreement resulting in a consent decree as stated earlier exists. However, the primary recourse available is to file under the contested form of divorce.
The court has a duty under Section 23(1)(bb) of the Hindu Marriage Act, 1955 to satisfy itself that in cases of mutual consent divorce the consent has not been obtained by fraud, force or undue influence. The court has to look into the facts of the case to determine that the consent is free. An appeal is however allowed keeping in mind the possibility that court might default in ascertaining consent (Sushma v. Pramod, (2009 SCCOnl Bom 399)).
For obtaining a divorce by mutual consent at the earliest, consultation with a good and experienced lawyer is always suggested as efficient guidance with polished drafting skills needed to draft terms of the settlement is a must.
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