Divorce by mutual consent

Question asked on: 07/11/2014

Mutual consent of divorce under section 13-B of the Hindu Marriage Act.

Advised by: Shivendra Pratap Singh,

Section 13-B, Hindu Marriage Act: Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnised before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976), 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 that they have mutually agreed that the marriage should be dissolved.

On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnised and that the averments in the petition are true, pass a decree of divorce declaring the wedding to be dissolved with effect from the date of the order.

The concept behind the provision of divorce by mutual consent is that parties without alleging anything against each other and without providing any of the grounds under Section 13 of the Hindu Marriage Act.

Section 13 of the said Act is based on a fault theory, i.e. the opposite party must have been at fault on account of any of the grounds set out in the said Act, and no party can take advantage of its wrong. The scheme of this Section provided for a petition to be presented must satisfy these  three grounds:

  1. The parties have been living separately for one year or more;
  2. That they have not been able to live together;
  3. They have mutually agreed that the marriage should be dissolved.

Section 14 restricts presentation of such a petition for divorce within one (1) year from the date of marriage. However, the proviso to sub-section (1) of Section 14 of the said Act allows presentation of a petition even before the end of one year from the date of marriage on the ground that  ” a case is one of exceptional hardship to the petitioner or of exceptional depravity on the part of the respondent.”

One of the essential ingredients provided therein is living separately for one year and, thus, unless this ground is satisfied the very basis of presentation of a petition for divorce under Section 13B of the said Act does not exist.

The decree of divorce would come into effect only post second motion. Living separately for one year is called first motion. Second Motion starts after compulsory wait/rethink period of at least six months and not more than eighteen months. Neither the trial court nor the High Court can waive the period or wait of six months between the presentation of the first motion and the second motion.

In the present, the Supreme Court, in the exercise of its extraordinary powers under Article 142 of the Constitution, can pass a decree of divorce by mutual consent without waiting for the six-month period which is pre condition under sec 13 B (2) of the Hindu Marriage Act.

A special leave petition filed by Neeti Malviya, this petition is referred to three-judge Bench of the Supreme Court, that bench will decide whether a decree of divorce by mutual consent can be granted without waiting for the statutory period of six months.

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Shivendra Pratap Singh

Advocate, Lucknow

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