This article is written by Purva Tambe currently pursuing BA. LLB from IILS Law College (Pune). This is article deals with divorce by Mutual Consent under the Hindu Marriage Act.
Marriage is regarded as a union of two souls, a commitment to each other between two persons in an effort to find happiness and to fulfil a social obligation by performing various rituals and ceremonies. It is also considered a sacrament or a social contract between two parties.
In ancient times, marriage was regarded as a permanent union between a man and a woman. Radhakrishnan noted that marital relations can never be dissolved. So, as long as we take this positive view but if we take another perspective on life and see it as a way to achieve our desires it will not seem like permanent.
In recent times the situation has changed completely. Married couples may not be able to resist each other for many reasons, such as disagreements between their views, lifestyle, and many other factors. Eliminating bonds, obligations, and duties, terminating a legal relationship with divorce was considered the best way to eliminate these things and end the marriage.
Various measures are taken to ensure the betterment of women and to change the status of women in society. Divorce by mutual consent is the best way to resolve disputes arising out of conflicts between the two parties and to take steps to improve the situation of women.
What does divorce mean?
Divorce is the termination of a marriage by the court judgment. A judicial decree is awarded declaring the marriage to be dissolved. It leaves both spouses free to marry again. Many states refer to it as the Dissolution of Marriage. It is also referred to as Absolute Divorce, Divorce from the Bond(s) of Matrimony, Total Divorce and, a Matrimonial Action.
Through consent with all parties to the marriage, most divorces are obtained, allowing the couple to proceed reasonably quickly and comfortably through the court system, some with and some without legal representation. However, there is a small percentage who can not find a reasonable agreement on the dissolution of their marriage or the related problems.
These couples utilize full legal representation and must avail themselves of their states' legal system in obtaining a divorce and reaching decisions regarding the related issues.
What is Divorce by Mutal Consent?
Under Section 13B of the Hindu Marriage Act, 1955, the parties can see divorce by mutual consent by filing a petition before the court. Mutual consent means that both the parties agree for peaceful separation
A radical concept was introduced in the HMU by the 1976 amendment by introducing Section13B, which deals with the divorce by mutual consent. Prior thereto, divorce was possible only under the Special Marriage Act. Now, such a divorce can be obtained also under HMA, on a petition of both the parties to the marriage on the ground –
That they have been living separately for at least one year.
That they have not been able to live together.
That they have mutually agreed that their marriage should be dissolved.
On the request of both parties, after such a petition has been filed no earlier than six months from the date of the petition and no later than eighteen months from that date if the court is satisfied that the claims made in the petition are valid, the court shall issue a divorce decree declaring the dissolution of the marriage with effect from the date of the decree.
Grounds for Divorce suggested by the Supreme Court.
In Jorden Diengden Vs. S.S.Chopra, the supreme court advocated a total reform of the law of marriage and suggested that an irretrievable breakdown of marriage should be added as a ground for divorce. The court observed that the time has now come when a uniform law should be passed on marriage and divorce, and such aw should be made applicable to all people in India, irrespective of their region or caste.
As different provisions regarding marriage and divorce currently exist in different statutes governing different religious grounds, a uniform Civil Code of marriage and divorce is “an immediate and compulsive need” the court observed.
Interestingly, a bill seeking to introduce an irretrievable breakdown of the marriage, as a ground of divorce was introduced in parliament, but later abandoned.
The Delhi high court had observed in two cases, that irretrievable break-down of marriage is not as yet a ground for the dissolution of marriage in the scheme of HMA, and therefore a Hindu marriage cannot be dissolved on the ground. (Bhatnagar v. Bhatnagar, A.I.R. 1989 Del. 121 and Nitu Vs. Krishan Lal)
When can you file a Divorce Petition? (Section 14)
The parties intending to dissolve marriage are required to wait for at least one year from the date of marriage.
They have to show that they have been living separately for a period of one year or more before the presentation of the divorce petition and that during this period of separation they have not been able to live together as husband and wife.
It is further provided that in a fit case, the court may, by special leave, allow a petition to be presented even before one year after the marriage, on the ground that the case is one of the exceptional depravity on the part of hardship to the petitioner or of exceptional depravity on the part of the respondent in the exceptional cases.
In such cases, the court has also to give due weight to factors as to whether there is a reasonable probability of a reconciliation between the parties, as also to the interest of the children of the marriage.
It is also provided that if it appears to the court, at the time of the hearing of the petition, that the leave of court had been obtained by misrepresentation or by concealment of the true nature of the case, the court may pass a decree for divorce, but add a condition that such a decree shall not operate until one year expires from the date of marriage.
Where can you file the Divorce Petition?
In the family court of the city/district where both the partners lived together for the last time, which was their matrimonial home.
How to file a Divorce Petition by Mutual Consent? What happens in the Court?
The divorce petition is in the form of an affidavit, which is to be submitted to the family court. After the filing of the petition and recording the statement of both the parties, the court generally adjourns the matter for a period of 6 months.
After six months the parties have to present themselves again in the court for making a second motion confirming the mutual consent filed earlier. It is only after this second motion that a decree of the divorce is granted by the court.
Can a party withdraw the mutual consent petition after filing the court?
During this period of 6 months when the petition is pending in the court, any of the partners is fully entitled to withdraw the mutual consent by filing an application before the court stating that he/she does not wish to seek divorce by mutual consent.
In such circumstances, the court grants no divorce decree.
Can you marry again after getting a divorce? (Section 15)
Formerly, it was provided that when a Hindu marriage had been dissolved by a decree of divorce, either party could marry again after the one year had elapsed from the date of the decree in the court of the first instance, provided that-
There was no right of appeal against the decree or
If there was such a right of appeal.
The time for appealing had expired without an appeal having been filed
An appeal had been filed and dismissed.
This rule was founded on the well-recognized principle that it would be contrary to good morals and public policy that a divorced person should be allowed to re-marry some other person with indecent haste. The rule was intended to ensure that a divorce was obtained as an extreme remedy, and not for the sheer purpose of marrying some other person.
However, this one-year restriction was, removed by the 1976 amendment, with the result that it is now open to persons divorced under the Act to marry any time after the divorce, provided that conditions(a) and(b) above are satisfied.
What is the cost involved in divorce by Mutual Consent?
If you hire an advocate, it will be somewhere from Rs 25,000 to Rs 75,000. But if you get the documentation done by us and file on your own without a lawyer, the cost will be very very low. You will not have any problem with filling your petition with our guidance, and you will save a lot of money.
How much time the process of Divorce by Mutual Consent takes?
It takes between six months and one year from the day the petition is filed. It varies from case to case & location to location.
Documents required for Divorce Petition:
Address Proof Husband and Wife.
Four Photographs of Marriage.
Income tax Statement for the last 3 years.
Details of profession and Income (Salary slips, appointment letter)
Details of Property and Asset owned
Information about family (husband and wife)
Evidence of Staying separately for a year
Evidence relating to the failed attempts of reconciliation
In view of the important importance and necessity of marital life in the community, various factors are taken into account when a declaration of divorce is made to those involved. Divorce accordingly provides an opportunity for peaceful resolution of disputes between parties and saves time and money.
Various changes have taken place in the process of granting a divorce in harmony and various conflicting decisions have also been passed. Seeking a mutually exclusive divorce will ultimately reduce the difficulties and difficulties faced by couples in relation to the disputed divorce and further simplify the process for both parties.