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Divorce By Mutual Consent

A decree for divorce by mutual consent can be passed and is liable to be passed where the parties seek divorce by mutual consent only by resort to the specific provisions of Section. 13-B and not otherwise. It is well settled that where a power is given to do certain thing in a certain way, that must be done in that way alone or not at all and all other methods of performance are necessarily forbidden. - P.Sunder Raj v/s P.Sarika Raj, AIR 2015, Punjab 83

Therefore, the statutory provisions which have been enacted for grant of divorce by mutual consent are to be adhered to and these cannot be circumvented or short circuited by resort to other procedure like Order. 23, Rule. 3, CPC and grant a divorce by dispensing with the requirements contained in Section. 13B of the Hindu Marriage Act.

A petition for divorce was filed by the husband urging the ground of cruelty under Section 13(1)(ia) of the Act. After trial, the petition was allowed and the marriage was dissolved by a decree of divorce. The wife challenged the decree before this Court in appeal. During pendency of the appeal, at the request of the counsel appearing for both the parties, this Court referred the parties to mediation. The mediation succeeded, the parties settled their disputes and they executed a memorandum of agreement.

When the case was taken up for consideration, the parties urged before this Court that they were agreeable to dissolve the marriage by a decree of divorce on mutual consent. With that view, they filed an interlocutory application in the above appeal seeking dissolution of marriage by mutual consent.

The application was supported by affidavits filed by both the parties, in which they reiterated their decision to dissolve the marriage by mutual consent. In Visalakshi v. Shivaraman Nair and Sreelatha v. Deepty Kumar held that in appropriate cases the waiting period prescribed under Section 13B(2) of the Act can be waived.

Kaizer Basu v/s Mahua Basu, AIR 2014 Calcutta, 180

A proceeding under Section 13(1) of the Hindu Marriage Act, 1955 cannot be converted to be made under Section 13B of the Hindu Marriage Act, 1955. A new petition under Section 13B of the Hindu Marriage Act, 1955 was required to be filed before the District Court.

Guru Vikas Sharma v/s Shweta, AIR 2014 Rajasthan, 190

From perusal of the statements made by the appellant and the respondent before the Family Court, it is apparent that the couple desire to get the marriage annulled and they are also living separately since 13.7.2011. Their wish to get the marriage annulled is further strengthened by the fact that the respondent did not choose to appear before this court despite service of the notice to show cause and also for final hearing of the appeal.

In curtailing the statutory period of six months and granting a decree of divorce by mutual consent, the Supreme Court has exercised power under Article 142 of the Constitution of India. This power is not available to any other Court in the land, including this Court.

In Anil Kumar Jain v. Maya Jain, the Supreme Court has clearly held, in no uncertain terms, that the doctrine of irretrievable breakdown of marriage is not available even to the High Courts which do not have powers similar to those exercised by the Supreme Court under Article 142 of the Constitution of India.

Swapnil Verma v/s Principle Judge, family Court, Lucknow, AIR 2015 Allahabad 153

Neither can the High Court, nor the Civil Court, can pass orders before the period prescribed under the relevant provisions of the Act, or on grounds not provided for in Section 13 and 13-B of the statute.

in re Mittal ramesh panchal, AIR 2014 Bombay 80

In such situation there is no option available with the appellants except to approach the competent Court of law for dissolution of their marriage by mutual consent under Section. 13B of Hindu Marriage Act. Since the marriage between the appellants legally subsists, the petition under S. 13-B can be entertained by Family Court.

There appears no legal impediment in entertaining the petition for divorce by mutual consent, filed by the appellants. Both the appellants acting under the bonafide belief that their marriage has come to an end on execution of Deed of Divorce remarried, no fruitful purpose could be achieved by forcing the parties to wait for six months in passing of decree. In view of re-marriage of appellants, there is no question of reconciliation, re-union between the appellants. While enacting the provisions of Section 13B, the legislature never contemplated such situation. In such situation Court may take recourse to its inherent powers under S. 151 of the Civil Procedure Code to meet the ends of justice.

Badri v/s Harbai AIR 2014, Rajasthan 108

In the instant case, the parties have been living separately since 1996 for about 17 years, the comfort of marriage has become a mirage and it exists only in form-as a legal tie. The possibility of reconciliation is non a existent and difficulty of making a marriage work under the order of the court quite un-surmountable. In the meantime the respondent wife has been making do with a pittance of Rs.600/- per month as maintenance while the caravan of legal proceedings goes on.

In the circumstances where the parties to a matrimonial dispute have reached a settlement and the respondent wife reasonably provided for by way of permanent alimony of Rs 4,5 0,000/- vis-a-vis a monthly maintenance of Rs 600/- per month and the parties under the settlement will be saved from the harassment and cost of litigation in pending cases.

Rajesh Kumar Sharma v/s Preeti Sharma, AIR 2015 Rajasthan 26

In the present case, facts are that petition for divorce at the instance of husband was also filed and remained pending for more than two years, albeit before the court of Additional District and Sessions Judge. That petition was allowed to be withdrawn with liberty to the parties to move an application for obtaining decree of mutual divorce by consent before the Family Court. The proceedings both, in earlier court and the subsequent court were thus between the same parties have to be accepted in continuation.

The intention of the legislature in sub-section (2) of Section 13B in providing a waiting period of six months is to give time to the parties to explore the possibilities of rapprochement between them. Since in this case, parties have been living separately for last 5 -7 years, waiting period of six months envisaged in sub-section (2) of Section 13B of the Act, should be taken to have been satisfied as litigations between each other for decree of divorce remained pending for last more than two years.

Mandeep Kaur Bajwa v/s Chetanjeet Singh Randhawa AIR 2015, Punjab and Haryana 160

In the present case, immediately after the marriage, the parties could not adjust due to different temperaments which led to strained relations between them. They lived together as husband and wife for about three months only. Thereafter, the appellant went to Canada. It is not possible for her to visit India time and again.

Both the parties are of marriageable age. The matter has been mutually settled between them.

In view of proviso to section 14(1) of the Act, condonation of the period of one year in the facts and circumstances of the present case appears to be appropriate. The petition under Section 13-B of the Act was filed on 12.8.2013 when the statements of both the parties at first motion were recorded. The statements of both the parties at second motion in terms of Section 1313(2) of the Act were recorded on 17.2.2014. Therefore, the parties are granted a decree of divorce by mutual consent under Section 13B of the Act.

Bipin Kumar Samal v/s Minarva Swain alias Samal, AIR 2016 Orissa 41

In view of the lawful mutual agreement and compromise between the parties and filing of an application for divorce by mutual consent and considering the prayer made in the application and the fact that the parties have been remaining separately since the month of September 2011 and also being satisfied that the marriage between the parties has been broken down irretrievably and there is no chance of reunion and giving our anxious consideration in the matter and the terms of settlement arrived at between the parties and in furtherance of the settlement, the appellant-husband has already deposited the entire amount of permanent alimony and returned all the articles which the respondent-wife had brought at the time of marriage to her, for the ends of justice we admit the compromise between the parties as we are satisfied that the compromise have been lawfully entered into between the parties without any coercion and out of their own volition and the mutual consent has not been obtained by force, fraud or undue influence.

Increasingly Family Courts have been noticing that one of the parties is stationed abroad. It may not be always possible for such parties to undertake trip to India, for variety of good reasons. On the intended day of examination of a particular party, the proceedings may not go on, or even get completed, possibly, sometimes, due to pre-occupation with any other more pressing work in the Court. But, however, technology, particularly, in the Information sector has improved by leaps and bounds. Courts in India are also making efforts to put to use the technologies available. Skype is one such facility, which is easily available.

Therefore, the Family Courts are justified in seeking the assistance of any practicing lawyer to provide the necessary skype facility in any particular case. For that purpose, the parties can be permitted to be represented by a legal practitioner, who can bring a mobile device. By using the skype technology, parties who are staying abroad cannot only be identified by the Family Court, but also enquired about the free will and consent of such party. This will enable the litigation costs to be reduced greatly and will also save precious time of the Court. Further, the other party available in the Court can also help the Court in not only identifying the other party, but would be able to ascertain the required information.

Shilpa Chaudhary v/s Principle Judge, AIR 2016 Allahabad 122

Dispensation of justice entails speedy justice and justice rendered with least inconvenience to the parties as well as to the witness. If a facility is available for recording evidence through video-conferencing, avoids any delay or inconvenience to the parties such facilities should be resorted to. There is no requirement that the witness must be required to come to court and depose in the physical presence in the court.

Mohin Saili, AIR 2011 Delhi 65

Section 13B and the amendment in Section 14 of the Hindu Marriage Act was brought through the same amendment by the legislature in the year 1976. Before the said amendment in Section 14 of the Hindu Marriage Act, the bar was for a period of three years in presentation of the petition under Section 13 of the Hindu Marriage Act and through the said amendment the period was reduced from three years to one year. Proviso to Section 14(1) of the Hindu Marriage Act provides an exception to the effect that the petition can be presented even before the expiry of said period of one year from the date of the marriage but the case should be of exceptional hardship to the petitioner or of exceptional depravity on the part of the respondent. Section 13B (1) of the Hindu Marriage Act on the other hand specify the grounds under which the petition to seek dissolution of marriage by a mutual consent can be presented.

The mandatory requirements envisaged under Section 13B of the Hindu Marriage Act are that:

  1. they have been living separately for a period of one year or more,
  2. that they have not been able to live together
  3. that they have mutually agreed that the marriage should be dissolved.

Once these three conditions are satisfied then only the court has the jurisdiction to entertain the petition for divorce by mutual consent.

Under the proviso to Section 14 of the Hindu Marriage Act, the parties can seek waiver of one year period in presentation of the divorce petition on the ground of hardship or due to exceptional depravity but the same cannot have the effect of diluting the mandate of Section 13B( 1) of the Hindu Marriage Act, which clearly mandates separation of one year between the parties before presentation of their joint divorce petition.

The Court is bound to pass a decree of divorce declaring the marriage of the parties before it to be dissolved with effect from the date of the decree, if the following conditions are met:

  1. A second motion of both the parties is made not before 6 months from the date of filing of the petition as required under sub-section (1) and not later than 18 months;
  2. After hearing the parties and making such inquiry as it thinks fit, the Court is satisfied that the averments in the petition are true; and
  3. The petition is not Withdrawn by either party at any time before passing the decree;

Hitesh Bhatnagar v/s Deepa Bhatnagar, AIR 2011 SC 1637

If the second motion is not made within the period of 18 months, then the Court is not bound to pass a decree of divorce by mutual consent Besides from the lannguage of the Section, as well as the settled law, it is clear that one of the parties may withdraw their consent at any time before the passing of the decree.

The most important requirement for a grant of a divorce by mutual consent is free consent of both the parties. In other words, unless there is a complete agreement between husband and wife for the dissolution of the marriage and unless the Court is completely satisfied, it cannot grant a decree for divorce by mutual consent. Otherwise, in our view, the expression divorce by mutual consent would be otiose.

The second motion was never made by both the parties as is a mandatory requirement of the law, and as has been already stated, no Court can pass a decree of divorce in the absence of that. The non-withdrawal of consent before the expiry of the said eighteen months has no bearing. The eighteen months’ period was specified only to ensure quick disposal of cases of divorce by mutual consent, and not to specify the time period for withdrawal of consent, as canvassed by the appellant.

Samardeep Singh v/s Smt.Randeep Kaur, AIR 2011 Uttar Pradesh 22

The parties to the matrimony have made out a case of waiver of waiting period required under sub-section (2) of Section 13-B of the Hindu Marriage Act, 1955. The trial court has erred in law in rejecting the applications 11-C and 13-C on the ground that the same are not maintainable, as the provisions contained in sub-section (2) of Section 13-B of the Act, are mandatory in nature.

The provision contained in sub-section (2) of Section 13-B of Hindu Marriage Act, 1955. is directory in nature, and decree of divorce can be passed even before expiry of waiting period of six months, by waiving the period, if the circumstances so require.

Rakesh Harsukhbhai Parekh v/s Maharashtra, AIR 2011 Bombay 34

The provision under Section 13B(2) is the respite period granted to such parties to reconsider their decision to dissolve their marriage. The provision lays down what a Judge is required to do if the Petition is not withdrawn before 6 months to 18 months statutory period when it remains on the file of the Court. If a Petition under Section 13 has remained on the file of the Court for as long as 3 years as in this case, the parties require no respite period to reconsider their decision to dissolve a broken marriage in which various allegations based upon the grounds under Section 13 have been made and later withdrawn upon seeing reason.

Mittal Ramesh Panchal, AIR Bombay 80

The learned judge has also rejected the petition by observing that the marriage between the appellants already dissolved by virtue of Deed of Divorce i.e. as per custom and usages prevailing in their caste and community and, therefore, the petition under S. 13-B of Hindu Marriage Act is not maintainable.

This conclusion to which the learned judge has arrived are not sustainable, both on facts and in law. There is no provision under the Hindu Marriage Act which provides for automatic dissolution of marriage. The dissolution of marriage as per custom and usages is one of the mode of dissolution of marriage recognized under the law. In general, the marriage can be dissolved only by recourse to the provisions contained in the Hindu Marriage Act.

Ritika Sisodiya v/s Pankaj Sisodiya, AIR 2014 Madya Pradesh 66

The parties before us have also stated that they are living separately for more than 18 months since 15.07.2012 and there is no possibility of them living together.

Sreekanth K v/s Nil, AIR 2014 Kerala 88

The proceedings continuing before the Family Court, can be completed in the absence of the petitioners, in the presence of their counsel. Family Court need not insist for appearance of the parties on 12.02.2014 or on any other dates. The Family Court shall dispose of original petition within a period of one month from the date of receipt of copy of this judgment.

Veerendra Singh v/s Smt.Seema Rajak, AIR 2015 Madhya Pradesh 100

The rival parities are staying separately from each other since about five years and all efforts towards reconciliation have failed the marriage has broken down irretrievably and the amount of rs 2,50,000/- as agreed upon by the rival parties has been paid in shape of permanent alimony to the respondent-wife. As a necessary consequence, a decree of divorce is granted to the appellant/husband and respondent-Wife by Way of consent u/S.13-B of the Act. The marriage solemnized between the appellant/husband and the respondent wife on 24.11.2008 stands dissolved.

Mittal Ramesh Panchal, AIR Bombay 80

The statutory period of six months provided under S. 13B(2) has been provided with a specific intent that the possibility of last minute reconciliation can be worked out in such matters. In dispensation of justice, the Courts are expected to do the justice between the parties by overcoming the technical difficulties, coming in the way of imparting justice. The waiver of statutory period of six months though not specifically provided but same can be read in provisions as the main object of provision is to liberalize divorce.

The provision cannot be read in rigidity so as to make the provision ineffective and meaningless. The period of six months is nothing but period provided with a view to enable parties to reconsider their decision and instead of dissolving their marriage resolve their differences. It was never the intention of the legislature that such period is to be observed irrespective of the facts of the case wherein the marriage has been irretrievably broken and there are no chances of reconciliation between the parties or it would be futile exercise to wait for six months.

Divorce By Mutual Consent landmark Judgments

Mutual Consent Divorce

To File Mutual Consent Divorce in Delhi and NCR
Contact Adv.Tapan Choudhury at Ph no: 9650499965 (Available in Whatsapp)

To File Mutual Consent Divorce in Pune
Contact NirDita Law Firm at Ph no: 8851978611 (Available in Whatsapp)

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