INTRODUCTION
Today, I will talk about Section 13-B of the Hindu
Marriage Act, 1955, that deals with Divorce by Mutual Consent.
SECTION 13-B
Section 13-B provides that “a petition for
dissolution of marriage…. may be presented to the District Court by both the
parties to a marriage…. 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 they have mutually agreed that the marriage should be dissolved.” It
further provides that when such a petition is presented before the Court, then six
months after the same and not later than 18 months, if the petition is not
withdrawn and a second motion is made seeking divorce, the Court may make an
inquiry and pass a decree of divorce.
Thus, we see that S. 13B of the Hindu Marriage Act
provides for divorce by mutual consent. In order to understand the same in a
better manner, let us go through the pertinent observations made in various
judgments by the Supreme Court.
OBSERVATIONS BY THE COURT
Firstly, in the case of Hitesh Bhatnagar v.
Deepa Bhatnagar, (2011) 5 SCC 234, the Court explained that following
conditions need to be met before passing of a decree of divorce under S.13-B of
the Hindu Marriage Act: -
a. A second motion of both the parties is made not
before 6 months from the date of filing of the petition and not later than 18
months.
b. 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
c. The petition is not withdrawn by either party
at any time before passing the decree.
Secondly, in the case of Inderjit Singh
Grewal v. State of Punjab, (2011) 12 SCC 588, it was held that “conjugal
rights are not merely creature of statute but inherent in the very institution
of marriage. Hence, the approach of a court of law in matrimonial matters
should be “much more constructive, affirmative and productive rather than
abstract, theoretical or doctrinaire”.” It was further held that the
interregnum waiting period of six months is “intended to give time and
opportunity to the parties to reflect on their move and seek advice from
relations and friends. In this transitional period one of the parties may have
a second thought and change the mind not to proceed with the petition. Thus,
withdrawal of consent can be unilateral prior to the second motion.”
Thirdly, in the case of Aparna Mehta Kapur
v. State of U.P., (2009) 17 SC 591, it was observed that the Supreme Court
may dispense with the statutory limitation period of six months provided that
the Application under S. 13B seems bona fide and “there is no impediment
in accepting the same to put an end to acrimonious disputes between the parties.”
Fourthly, in the case of Priyanka Khanna v.
Amit Khanna & Another, (2011) 15 SCC 612, it was noted that when it
becomes apparent to the Court that “the relationship between the couple
has broken down in a very nasty manner and there is absolutely no possibility
of a rapprochement between them even if the matter was to be adjourned for a
period of six months as stipulated under Section 13-B of the Hindu Marriage Act,”
then Application under S. 13-B of the Hindu Marriage Act should be allowed to
dissolve the marriage between the parties.
And lastly, in the case of Hitesh Bhatnagar
v. Deepa Bhatnagar, (2011) 5 SCC 234, it was also held that “the
most important requirement for a grant of a divorce by mutual consent is free
consent of both the parties. In other words, unless there is a complete
agreement between husband and wife for the dissolution of the marriage and
unless the court is completely satisfied, it cannot grant a decree for divorce
by mutual consent.”
Therefore, I hope that the mandate of S. 13-B of
the Hindu Marriage Act, 1955, is clear by now. So, what are my concluding
remarks?
SUMMARY AND CONCLUSION
In conclusion, following important points emerge
with respect to S. 13-B and Divorce by Mutual Consent: -
a. A Joint Application under S. 13-B must be made
by both the parties before the Court.
b. A second motion of both the parties is to be
made not before 6 months from the date of filing of the petition and not later
than 18 months.
c. The Court must be satisfied that there is free
consent of the parties in moving of such an application.
d. The petition is not withdrawn by either party
at any time before passing the decree.
e. Limitation Period of six months could be waived
provided that the Application under S. 13B seems bona fide and “there
is no impediment in accepting the same to put an end to acrimonious disputes
between the parties.”
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