Legal Advice

Convert divorce case in to mutual consent divorce

Query

Can court convert the divorce case filed under section 13 of the Hindu Marriage Act into the Divorce of Mutual Consent under section 13B of the same Act? I filed a divorce case under section 13 at Jhansi Family court. The opposite party i.e. my wife, never appeared in the court. Now my wife has agreed to divorce on a mutual consent basis at Vadodara. She is working at Vadodara. Now she is telling me that first you have to withdraw the case (sec13). After that, we can file a case under 13B.   Is it legal to file a case under 13B without withdrawing the existing divorce case. Is it mandatory to withdraw an existing case under section 13 before filing a case under 13B.

Advice

Section 13 of the Hindu Marriage Act 1955 provides grounds for divorce. All the grounds mentioned in this section are based upon the guilt theory. The plaintiff is bound to prove the guilt of the defendant to get a divorce under the Hindu Marriage Act.

Section 13-B of the Hindu Marriage Act provides divorce by mutual consent. It is a special remedy for the parties if their marriage has irretrievably broken down, and they want to end the nuptial knot by their mutual consent. In mutual consent divorce, the spouses have to prove that they have been living separately for more than one year, they have agreed with their free consent that the marriage should be dissolved, and the parties have not been able to live together.

If a divorce petition is already filed under Section 13 of the Hindu Marriage Act, and at a later stage of the proceeding, both parties agree to proceed for mutual consent divorce, they can do so. They can withdraw the divorce petition and file a fresh petition under Section 13-B. A divorce petition filed under Section 13 does not automatically convert into Section 13-B on the application of parties.

Consent of parties is the essential part of divorce under Section 13-B. Therefore, the court must be 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.

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 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 the passing of the decree. Mutual consent should continue until the divorce decree is passed. It is a positive requirement for the court to pass a decree of divorce.

Shivendra Pratap Singh

Advocate

High Court Lucknow

Divorce Cases | Family Law

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