13B. Divorce By Mutual Consent
- 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not withdrawn in the meantime, the court shall, on being satisfied, after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 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 decree].
1. Amendment of provisions regarding mandatory period - No further relaxation
given - Shows legislative intent not to liberalize law on this question:
The legislature, while introducing the Amending Act 1976, did take into
consideration the following:
- to liberalize the provisions relating to divorce
- to enable expeditious disposal of
proceedings under the Act and
- to remove certain anomalies and handicaps in the
These ingredients are evident from the plain language of the section and do
not leave any scope for ambiguity. Thus, it would not be necessary for the Court to expand
its meaning and convert a mandatory provision into directory which may even result in
defeating the object of the provision.
2. Arriving compromise—Competent at any stage of proceeding
law providing of this specific relief, specifies the Court and mode and provides specific
circumstances, and conditions in which the specific relief, may be granted and specific
jurisdiction may be exercised for then, on the satisfaction thereof only the decree can be passed or relief can be granted. A decree of divorce no doubt on mutual consent and filing Joint Petition is, provided for as a remedy, under Section 13B of the Hindu Marriage
The compromise otherwise than under Section 13B, so far is concerned is only one
of reconciliation to be arrived at between the parties before the Main Petition is tried or
ecree is passed for dissolution or judicial separation. If parties come to compromise or
compromise to live together, that compromise even at the time decree is, passed or even it
may be stage of appeal during the pendency of appeal, may be, entered also because power
of Appellate Court are, same and subject to same conditions as, those of Original Court.
3. Conduct of Parties—Relevant to record finding of facts:
By looking to the conduct of the Wife—appellant herein, the court is of the considered view that the theory
put forward wife—appellant herein that she was made to sign the joint petition
under coercion and threat is a totally concocted story.
Therefore, the wife—appellant herein
was not able to prove the fact that the husband-respondent herein had played fraud on
her by obtaining the signature for divorce by mutual consent. No lady would give up the
custody of the child and would also give up the right of maintenance.
This fact also would
prove that her consent to the divorce petition was obtained by playing fraud or coercion
or threat on her. This court is not in agreement with the submission made by the learned
senior counsel because the Wife—appellant herein is an educated lady.
She is a graduate.
She used to speak and write in English. She had all opportunities to complain to many
people if at all the husband—respondent herein played fraud on her but she did not choose
to do so.
This fact itself is sufficient to prove that on her own accord, she had agreed to
sign the divorce petition as the husband—respondent herein used to give mental torture
to her by demanding a dowry of ? 25 lakhs for doing business. Considering the facts on
record, the court is convinced that the husband—respondent herein did not play any type
of fraud in obtaining her consent for mutual divorce under Section 13(l2) of the Hindu
4. Decree of Divorce by Mutual Consent:
A consent decree passed under Section
13-B of H.M Act, granting divorce by mutual consent of the spouses is entirely different
from a consent decree passed by a Civil Court in non-matrimonial matters. A decree
passed by the consent of spouses is to be distinguished from decrees passed in other matters
by a Civil Court as there are several formalities and requirements, which are prescribed
under Section 13—B of H. M. Act.
When there is violation of those requirements of law
or there is allegation of fraud, undue influence, coercion, deception, deceit in passing a
decree under Section 13—B of H. M. Act, an appeal can be made to the next Appellate
Court. Further, Section 28(1) of H.M Act is very clear that all decrees including a
consent decree passed under Section 13-B of H. M. Act is appealable.
5. Dissolution of Marriage - Mode of:
In the present case, husband and wife had
no intention of not performing the matrimonial obligations at least for the first period
of two months after the date of marriage when due to compulsions they decided not to
live together. It was thus not open to the parties to agree to dissolve the ‘marriage without
satisfying requirements of section 13-B of the Hindu Marriage Act.
If it was not possible
for the parties to consent to dissolve the marriage unless statutory requirements were
satisfied, it was not lawful for the court to dissolve the marriage even on consent of the
- To File Mutual Consent Divorce in Delhi and NCR
Contact Adv.Tapan Choudhury at Ph no: 9650499965 (Available in
- To File Mutual Consent Divorce in Pune
Contact NirDita Law Firm at Ph no: 8851978611 (Available in Whatsapp)