Convert divorce case in to mutual consent divorce

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Question asked on: 01/02/2017

Can court convert the divorce case filed under section 13 of Hindu Marriage Act into the Divorce of Mutual Consent under section 13B of the same Act?

Advised by: Mr. Shivendra Pratap Singh, Advocate

Section 13 of the Hindu Marriage Act 1955, provides grounds for divorce. All the grounds mentioned in this section are based upon guilt theory. Petitioner is bound to prove guilt of the defendant in order to get divorce under the Hindu marriage act. Section 13-B of the Hindu marriage act provides a special remedy for parties to the irretrievable breakdown of marriage to end nuptial knot by their mutual consent. In mutual consent divorce only free consent of the parties are required for decree of divorce.

If divorce petition is already filed under section 13 of the Hindu marriage act and at the later stage of the proceeding both parties are agreed to proceed for mutual consent divorce, they can proceed so. They can withdraw the divorce petition and file a fresh petition under section 13-B. Divorce petition filed under section 13 does not automatically convert into section 13-B on the application of parties.

Consent is the only ground of divorce under section 13-B therefore, court is satisfied that the consent of parties is not obtained by force, fraud or undue influence and they have mutually agreed that the marriage should be dissolved. Court is not bound to pass decree of divorce merely on the ground that parties have filed petition under section 13-B. The court may make such inquiry as it thinks fit, including the hearing or examination of the parties for the purpose of satisfying itself whether the averments in the petition are true.

Under section 13-B (2) the parties are required to make a joint motion not earlier than six months after the date of presentation of the petition and not later than 18 months after the said date. This motion enables the court to proceed with the case in order to satisfy itself about the genuineness of the averments in the petition and also to find out whether the consent was not obtained by force, fraud or undue influence.

In Sureshta Devi v. Om Prakash, (1991) 2 SCC 25; If one of the parties at that stage says that “I have withdrawn my consent”, or “I am not a willing party to the divorce”, the court cannot pass a decree of divorce by mutual consent.

In mutual consent divorce the consent may be withdrawn by any party at any time or stage of the proceeding but before passing of the decree. Mutual consent should continue till the divorce decree is passed. It is a positive requirement for the court to pass a decree of divorce.

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Shivendra Pratap Singh

Advocate, Lucknow

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