Convert divorce petition into petition of divorce by mutual consent

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Question asked on: 15/02/2017

I have filed a divorce petition, but we are ready to get a divorce by mutual consent. Can we move afresh petition or court can entertain it as a petition for mutual divorce?

Advised by: Mr. Shivendra Pratap Singh, Advocate

Section 13 of the Hindu marriage act mentions some grounds for divorce. The section follows the guilt theory. Therefore, one party to the marriage is bound to prove the guilt of others to get a divorce and end their nuptial knot. The court shall not grant the divorce if the guilt of other party does not prove. 

In some exceptional cases, the guilt theory creates a tough situation because parties bound to live together in the absence of proof of guilt. However, their marriage becomes fail. 

Section 13-B of the Hindu marriage provides a remedy in such exceptional cases. It provides a solution to end their nuptial knot if both parties agree to do so. If both parties are admitted to get a mutual divorce, they can file a petition for mutual consent divorce under section 13-B. 

If divorce petition under section 13 of the Hindu marriage act has filed due to want of evidence of guilt, parties may request to treat it as the petition of divorce by mutual consent.

In Rajiv R. Hiremath v. Uma, (2000) 10 SCC 303; the supreme court of India opines that if both the parties have agreed to get a decree of divorce by mutual consent, they can do so by preparing an agreement of compromise and place it before the court.

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