Hindu marriage is a sacred and holy union of husband and wife by virtue of which the wife is completely transplanted in the household of her husband and takes a new birth. It is a combination of bone to bones and flesh to flesh. The mutual consent divorce however, breaks this holy concept but provides a good remedy in complete breakdown of marriage. Section 13 B of The Hindu Marriage Act (HMA) provides divorce by mutual consent. It is a medium to dissolve the marriage through the consent of the parties. Divorce by mutual consent follows the consent theory whereas, Section 13 HMA follows the guilt theory of divorce.
Need not to prove the guilt of the party is the main difference between these theories. Therefore, the court can grant divorce without delinquency of spouses.
Subject to the provisions of the 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 solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 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.Section 13-B (l) Hindu Marriage Act
These are the essential elements of mutual consent divorce.
- Spouses have been living separately for a period of one year.
- They have not been able to live together.
- They have mutually agreed to live separately.
All above mentioned three grounds are mandatory for the divorce by mutual consent [Leela vs Mahadev 1991].
Spouses have been living separately for a period of one year
The term “living separately” has a very vast connotation. When the spouses are living in a single roof but not as a husband and wife, it deems they are living separately [Sureshta Devi vs Om Prakash 1992].
At the time of filing of the petition under Section 13-B the parties should be living in separation for more than one year. Otherwise the court will not entertain the petition. If the above conditions are fulfilled and the spouses have filed a divorce petition, they can convert the divore petition into a mutual consent divorce.
They have not been able to live together
It means that there is a complete breakdown of marriage. There is no hope to resume the marital relationship. The spouses have no desire to perform marital obligations and it would not be possible to reconcile themselves.
They have mutually agreed to live separately
At the time of filing of the divorce petition the spouses are mutually agreed that they will live separately. There is a free consent of both parties to end the nuptial knot. The consent is mandatory not only at the time of filing of the petition but must exist till the time of decree. However, any party can withdraw his/her consent before the passing of the decree.