Legal Advice

Can husband file mutual consent divorce if wife is not ready thereof

Shivendra Pratap Singh


High Court Lucknow

Family Law | Maintenance

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Question asked on: 6 Apr, 2022

Question: We have been married for the last 16 years and have a child aged 15 years. So far I have taken care of all financial requirements & my spouse is a housewife though she takes a few tuitions at home. I left my job in 2020 & am presently unemployed for close to  2 years now. We have not shared a marital relationship for the last 8 years though we stay in the same apartment building. There are irrevocable differences between us & separation seems the only way out. She is reluctant to file for separation. 

Though I have mentioned categorically to her that I will take all financial responsibility of our child till he is financially secure but she wants alimony for her as well as a primary criteria for divorce. Is there any legal way to file for divorce if the other party is not in agreement for mutual separation? Can the wife claim alimony for herself when I am not employed & quite evidently it has been a long time since I am unemployed?

Asked from: West Bengal

Mutual consent divorce is like a contract. If husband and wife have agreed to end their nuptial knot they can file mutual consent divorce (MCD). Consent of spouses is mandatory for the MCD petition.

When spouses are living apart for more than one year and they think that they cannot live together. They can invoke section 13 B if Hindu Marriage Act and get divorce by their mutual consent.

Hence, the husband cannot file a mutual consent divorce (MCD) if his wife is not ready thereof. Section 13 B requires free consent of the spouse. It is based upon no guilt theory therefore no need to prove culpability of others. The court grants a decree of divorce on the basis of separation agreement between the spouses. 

So far as maintenance is concerned, you have to maintain your wife and children. It does not matter that you are currently unemployed. An unemployed husband is bound to maintain his wife and children. You are physically fit and have the ability to earn. 

In Reema Salkan v. Sumer Singh Salkan, (2019) 12 SCC 303 the Supreme Court has held that “The husband being an able-bodied person is duty-bound to maintain his wife who is unable to maintain herself.”

Your wife is giving home tuition, it is a temporary job. She is not earning a handsome amount to maintain herself and her child. You cannot delegate your duty (maintenance) to your wife. 

Your plea of unemployment will hold no field. The court will direct you to pay alimony to your wife and children. Because they have a legal right i.e. right to maintenance.