What is 'Divorce by Mutual Consent' under the Hindu Marriage Act?

 

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is presented before the Court, then six months after the same and not later than 18 months, if the petition is not withdrawn and a second motion is made seeking divorce, the Court may make an inquiry and pass a decree of divorce.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c. The petition is not withdrawn by either party at any time before passing the decree.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.”