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“DIVORCE BY MUTUAL CONSENT AS PER SECTION 13B”

Under the Guidance

Of

PROFESSOR: ABHINAV MISHRA

SUBMITTED BY : KATARMAL DEEPAK

CLASS : SY LLB (3 yrs.)

ROLL NO : 213062

SIGNATURE :
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SR. PG.
NO INDEX NO

1 Abstract 3

2 Introduction 4

3 Dissolution of marriage under the Hindu Marriage Act 5

4 Provisions of Section 13B of The Hindu Marriage Act, 1955 7

5 Essentials of divorce by mutual consent 9

6 Procedure for getting a decree of divorce by mutual consent 9

7 Procedure for getting a decree of divorce by mutual consent 11

8 CONCLUSION 16

9 WEBLOGRAPHY 17

Abstract
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This paper seeks to analyse and understand the meaning of Divorce. It describes different types
of Divorce available as per The Hindu Marriage Act 1955 in India. Use of pictures makes the
paper easy to understand & visualize. It reproduces the provision of Section 13B of The Hindu
Marriage Act 1955. The essential conditions of divorce by Mutual consent has also been
described. This paper also provides understanding about procedural aspects of Divorce by
Mutual Consent. The existing laws and various case laws describes how matters relating to
petition of Divorce by mutual consent is interpreted by the courts.

Introduction
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Marriage has always been considered as a holy relationship in every religion around the world. It
is said that relationships are made in heaven and couples just meet each other on earth. It is not
just a relationship between two people, but a relationship between two different families. Two
different people from two different families come together to get married and start a new family.
Anyhow, marriage is still an agreement and like all other forms of agreements, it can also be
brought to an end.

There are multiple legislations in India regarding marriage such as The Indian Christian
Marriage Act, 1872; Muslim Marriage Act, Special Marriage Act, and Hindu Marriage Act. In
this article, we are going to deal only with the Hindu Marriage Act, specifically how to end a
marriage by mutual consent as per the Act.

Dissolution of marriage under the Hindu Marriage Act

1
Image Source: Hindustan Times
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If marriage solemnized under the Hindu Marriage Act is valid, and there is a reason to end it – it
can be ended by way of either Judicial Separation under Section 10 or Divorce under Section 13
and Section 13B. Section 13A provides alternate reliefs in divorce proceedings.

Dissolution of
Marriage Under Hindu
Marriage Act
Divorce Remedies

Divorce on fulfillment
Judicial Separation of any ground Divorce by Mutual
provided under Act Consent
Section 10 Section 13 Section 13B

Let’s discuss each remedy in brief and Divorce by mutual consent in full lenth.

Judicial Separation – (Section 10):

Judicial Separation is an alternative to divorce – however, it does not put the marriage to an end.
The parties do not cohabit, but other obligations of marriage still remain in existence. The parties
still remain husband and wife, even though they might live separately and do not have a sexual
relationship. One cannot remarry in case of Judicial Separation.

Even though the parties remain spouses, they must not have sexual intercourse without the other
party’s consent during judicial separation. Section 376B of the IPC states that if a man tries to
have sexual intercourse with his wife without her consent during judicial separation, he may face
a prison sentence for up to 2 years and/or fine.
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Section 10 of the act mentions that the grounds of judicial separation are the same as the grounds
for divorce provided under Section 13(1) of the Act.

Divorce on fulfillment of any ground provided under the Act – (Section 13):

In the case of divorce, the marriage is brought to a permanent end. All marital obligations are
lifted off the parties and they are free to remarry. The parties no longer remain husband and wife.

The parties are free to choose whether they want a decree of judicial separation or divorce, the
court may grant the decree if satisfied.

Grounds for Judicial Separation and Divorce – Section 13(1):

• Adultery: has sexual intercourse with any other person than their spouse.

• Cruelty: treats their spouse with cruel behaviour.

• Desertion: has left their spouse for a period of at least two years without any reasonable
grounds.

• Conversion: has converted to some other religion.

• Insanity: suffers from any mental disorder.

• Leprosy: suffers from an incurable and contagious disease.

• Renounced the world: has renounced the world to unite with God or for the search of the
truth.

• Has not been heard alive for seven years2.

Divorce by mutual consent – (Section 13B):

In a case where none of the aforementioned grounds is available, but the parties decide they do
not want to remain married to each other or cannot live with one another they can seek divorce
by mutual consent under Section 13B of the Hindu Marriage Act.

2
Source: httpsblog.ipleaders.inmutual-consent-divorce
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Provisions of Section 13B of The Hindu Marriage Act, 1955

(1) 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 solemnized 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.

(2) 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
solemnized and that the averments in the petition are true, pass a decree of divorce declaring the
marriage to be dissolved with effect from the date of the decree4.

3
Image Source: mylegaladvice.com
4
Source:httpsindiankanoon.orgdoc439618#~text=(1)%20Subject%20to%20the%20provisions,68%20of
%201976)%2C%20on
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(i) The period of 6 to 18 months provided in section 13B is a period of interregnum which is
intended to give time and opportunity to the parties to reflect on their move. In this transitional
period the parties or either of them may have second thoughts.

(ii) The period of living separately for one year must be immediately preceding the presentation
of petition. The expression ‘living separately' connotes not living like husband and wife. It has
no reference to the place of living. The parties may live under the same roof and yet they may
not be living as husband and wife. The parties should have no desire to perform marital
obligations.

(iii) The period of six to eighteen months time is given in divorce by mutual consent as to give
time and opportunity to the parties to reflect on their move and seek advice from relations and
friends. Mutual consent should continue till the divorce decree is passed. The court should be
satisfied about the bona fides and consent of the parties. If there is no consent at the time of
enquiry the court gets no jurisdiction to make a decree for divorce. If the court is held to have the
power to make a decree solely based on the initial petition, it negates the whole idea of
mutuality. There can be unilateral withdrawal of consent. Held, that since consent of the wife
was obtained by fraud and wife was not willing to consent, there could be unilateral withdrawal,
of consent; Sureshta Devi v. Om Prakash5

5
AIR 1992 SC 1904
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Essentials of divorce by mutual consent6

Parties should be living separately

Section 13(B) of the Act prescribes that in order to mutually dissolve a marriage, the
spouses should be living separately for a period of at least 1 year before filing the
petition.

This period of one year where the parties have lived separately must be immediately
before the filing of the petition. “Living separately” in the context of Section 13B does
not necessarily mean physically living in different places. The parties could be living in
the same house, sharing the same roof but there can still be a distance between the two.

If that is the case then they are not considered to be living as husband and wife, which
qualify as living separately.

The same was held by the Hon’ble Supreme Court in the case of Sureshta Devi v. Om
Prakash7. Wherein it was made clear that living separately does not necessarily mean
living in different places. The parties can be living together but not as spouses.

Parties have not been able to live together

It is said that relationships are made in heaven, however sometimes the holy relationships
do not work for long on Earth. These days divorce is taken very lightly and people go for
it as a first resort whereas the intention behind the law of divorce was to make it a last
resort. Many times, in a marriage it so happens that the spouses can’t stand each other
and can no longer live together happily. That is when they opt for divorce by mutual
consent.

Sadly enough, it often happens that the parties are not able to live together even after
trying mediation and reconciliation and putting multiple efforts, before filing a divorce
petition by mutual consent.

6
Source: httpsblog.ipleaders.inmutual-consent-divorce
7
Supra Provisions of Section 13B of The Hindu Marriage Act on page no 8
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In Pradeep Pant & anr v. Govt of NCT Delhi 8, the parties were married and had a
daughter from their wedlock. However, due to temperamental differences between them,
they were not able to live together and decided to live separately. Despite putting their
best efforts they were unable to reconcile their marriage and could not see themselves
living together as husband and wife ever again. A divorce petition was jointly filed and
issues such as maintenance and custody of their child were decided and agreed upon by
both.

The wife would get custody of their daughter and the husband would reserve visitation
rights, it was mutually agreed upon by both of them. Both parties gave their free consent
without any undue influence. The court observed that there was no scope of
reconciliation and granted a decree of divorce.

After filing a petition for divorce by mutual consent, the parties are given a waiting
period of 6 months, also known as a cooling period and it may extend up to 18 months.
During this time the parties must introspect and think about their decision.

If the parties are still not able to live together after the cooling period, then the divorce
petition shall be passed by the district judge.

They have mutually agreed that marriage should be resolved

In some situations – the parties may choose to give their marriage another chance and
mutually resolve their marriage. During the waiting period, the parties may sometimes be
able to reconcile and make their relationship work.

After the first motion has been passed, the parties have a total of 18 months to file for
second motion and if they fail to do so within those 18 months, both parties are deemed
to have withdrawn their consent mutually.

8
Source: Pradeep Pant & Anr vs Govt Of Nct Delhi on 27 April, 2012, Delhi Highcourt at indiankanoon.org
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Procedure for getting a decree of divorce by mutual consent9

Step 1: Jointly filing a petition

A divorce petition in the form of an affidavit is to be signed by both parties and filed before a
family court in their region.

Jurisdiction of the court should not be a major issue in filing for divorce as the petition can be
filed within the local limits of the ordinary civil jurisdiction of where the marriage was
solemnized or where either of the parties currently resides.

Step 2: First Motion

After filing the petition the parties shall appear before the court and give their statements. If the
court is satisfied and the statements are recorded then the first motion is said to have been
passed, following which a waiting period of 6 months will be given to the parties before they are
able to file the second motion.

9
Ibid
10
Image Source: www.lawcornner.in
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This waiting period as statutorily prescribed under Section 13B(2) of the Act is for the parties to
introspect and think about their decision. It is a time given for them to reconcile and give their
marriage another chance, just in case they decide to change their mind.

Anyhow, sometimes the court may be convinced that the marriage has reached the point of no
return and the waiting period will only expand their misery. In that case, this period can be
waived off by the court. This period if not waived off can extend up to 18 months. If the parties
still want to get divorced they may now file for second motion. The second motion can be filed
only after the waiting period of 6 months and before 18 months has elapsed.

Step 3: Second Motion

This is when final hearings take place and statements are recorded again. If the issues of alimony
and child custody (if any) are mutually agreed upon the decree of divorce is passed after this
step. The marriage has finally ended by now and divorce by mutual consent has been granted.

Is the six month waiting period mandatory?

Getting a divorce is a very serious matter, it can destroy and separate families. But, on the other
hand, the parties get to exercise their right to choose and pursue their happiness as there is no
point to continue being in a matrimonial relationship if the spouses are not happy. For couples
who go for filing divorce by mutual consent are given time to try and make their marriage work.
They are advised to go for mediation and reconciliation to sort their issues out.

However, many times these efforts don’t work and people actually go through with the divorce.

While filing for divorce by mutual consent the parties have already lived separately for a period
of over one year per the statutory requirement. So, there is very little to no chance that they can
make the marriage work again.

In the case of Amardeep Singh v. Harveen Kaur11, it was observed that the couple had internal
disputes and their married life was not the best one. The disputes escalated really bad and many
civil and criminal proceedings were followed.

11
AIR 2017 SC 4417
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They mutually decided to resolve all the disputes and file for divorce by mutual consent. The
custody of their children would be with the husband, and permanent alimony was paid to the
wife.

After all these issues were mutually sorted by the parties they just wanted a quick divorce and
sought to waive off the waiting period. The parties could no longer be with each other and the
waiting period would only prolong their agony12.

Keeping this in view, Hon’ble Supreme Court laid down the waiting period of six months can be
waived off if the court is satisfied that the spouses have lived separately for more than the
statutorily prescribed time of at least one year and have settled the issues of alimony and custody
of children(if any).

Hon’ble Supreme Court also observed that the waiting period will do nothing but merely prolong
the misery and sufferings of the parties unable to live together anymore.

In another case of K. Omprakash v. K. Nalini 13, Andhra High Court held that, the parties were
not happy with their marriage anymore and were allegedly having extramarital relationships. It
was the contention of the petitioner that they were living apart without ever visiting each other
for more than a year and so, there was no scope of reconciliation between them.

They blamed each other for their suffering and unhappiness. Both alleged each other to be
involved in a series of illicit relationships but denied ever being involved in such relationships
themselves.

There was no other option left but only to file for divorce by mutual consent. The marriage had
suffered irretrievable damage and had reached a point of no return.

Both parties prayed for an instant divorce and a waiver of the waiting period. Observing that the
parties had lived separately for long enough and there was no scope of getting the marriage to
work again.

The High Court of Andhra Pradesh held that Section 13B(2) of the Hindu Marriage Act should
be read not as a statutory mandate, but only as a directory.
12
Ibid
13
AIR 1986 AP 167
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Hence, the waiting period which was once mandatory in nature now remains discretionary.

Whether consent can be unilaterally withdrawn?

After the first motion, if the parties are provided with the waiting period they may sometimes
decide to change their mind. Not all cases of divorce are irreparable and some may still have
some scope of reconciliation and the parties may choose to withdraw their consent and give their
marriage a second chance.

The waiting period proves to be very useful for some cases as the parties get to go for mediation
which may change their mind. The consent of the parties is also deemed to be withdrawn after
the expiry of the waiting period of 18 months, wherein a decree of divorce shall not be granted.

The phrase “Divorce by Mutual Consent” is self-explanatory, it simply means that the consent of
both parties is required in order for the court to grant the decree of divorce. In Sureshta Devi v.
Om Prakash, the wife’s consent was fraudulently obtained by the husband for filing a divorce.
The wife was unwilling to give her consent for divorce and therefore she did unilaterally revoked
her consent.

Upon reading the judgement of the Supreme Court we can conclude that a party can unilaterally
withdraw their consent if the same has not been freely given.

After the first motion has been passed the parties will have agreed to settle on various issues such
as alimony, custody of children and other marital expenses. Now, If one of the parties
unilaterally withdraws their consent the other party may suffer prejudice that could be
irreversible.

In Rajat Gupta v. Rupali Gupta, Delhi High Court the court says that the agreement between the
parties to settle their issues and opt for divorce by mutual consent is a binding agreement and a
form of undertaking. If a party now unilaterally withdraws their consent, they would be in breach
of their undertaking made before the court of law, resulting in civil contempt of court by wilfully
disobeying an undertaking. If the consent has to be withdrawn unilaterally, it must be done so on
a just and reasonable ground and the other party must not suffer prejudice.
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Therefore, consent can be unilaterally withdrawn only in exceptional cases on reasonable

grounds14.

Conclusion

14
Ibid
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Divorce is a serious issue and must be used only as a last resort, however, these days people do
not think twice before getting divorced. It splits families and the child of the separating couple
has to go through serious trauma growing up with separated parents.

Having said all that, countries having higher divorce rates have higher standards of women
empowerment. People get to exercise their right to choose to end the marriage if they are not
happy.

Divorce by mutual consent is the best way of divorce as the parties do not have to bad mouth
each other in the courtroom and both parties can mutually settle on all issues and end their
marriage.

Weblography
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 www.ipleaders.com
 www.mylegaladvice.com
 www.lawcornner.in
 www.indiankanoon.com