HM Journal

Divorce by Mutual Consent

To get divorce, parties of the marriage will have to be presented in front of the District Court together.

Section 13-B. Divorce by mutual consent:

1. The Hindu Marriage Act allows both parties, regardless of whether they were married before or at the time of divorce, to file a divorce petition with the district court pursuant to the divorce provisions. The reason that the Marriage (Amendment) Act of 1976 came into effect was that they had lived for more than a year, could not live together, and collectively agreed that the marriage should be dissolved.

2. At the request of both parties, within six months from the date of submission of the application or within 18 months after that date, unless the application is withdrawn the court must, upon discovery, issue a divorce judgment declaring the dissolution of the marriage according to an investigation in which it is found that the marriage is established with the parties and that the statements contained in the petition are correct. The marriage must be dissolved from the date of issuance of the decree.

The two stages of HMA section 13-B are as follows. In the first stage of Section 13B (1), the parties are required to meet the following requirements:

(i) The district court must receive a divorce petition;

(ii) An application for annulment of a marriage must be filed jointly by both spouses, regardless of whether the marriage took place before or after the commencement date of the Marriage Laws (Amendment) Act, 1976;

(iii) Both parties have lived separately for one year;

(iv) Neither party has been able to live together; and

(v) Once the parties had agreed that their marriage should be dissolved, they signed a dissolution agreement.

It provides that both parties must again appear in court for the Second Motion under Section 13B (2), which relates to the manner in which the court exercises its jurisdiction. A joint motion must also be filed by the parties within six months after the filing of the First Motion and no later than 18 months after such filing. A waiting period of six to eighteen months is meant to give each party an opportunity to reflect/renege if they want. Divorce cannot be granted during this time. Supreme Court has explained this principle in Sureshta Devi v. Om Prakash.

INGREDIENTS ON SECTION 13 (B) CPC

1- Subject to provisions of the Act a petition for dissolution of marriage by a decree of divorce could even be presented to the district court by both the parties to a wedding together, whether such marriage was solemnised before or after the commencement of the wedding Laws (Amendment) Act, 1976

On the bottom that they need been living separately for a period of one year or more, that they have not been able to live together and they both have agreed that the marriage should be dissolved.

2- The period of six to eighteen months is given in divorce by mutual consent on give time. Mutual consent should continue till the divorce decree is passed. If there’s no consent at the time of enquiry the court gets no jurisdiction to form a decree for divorce. If the court is held to possess the facility to form a decree solely supported the initial petition, it negates the entire idea of mutuality. There can be one-sided withdrawal of consent.

JUDGEMENTS RELATED TO SECTION 13 (B) OF CPC

ARPIT GARG VS AYUSHI JAISWAL ON 6TH MAY, 2019

BENCH: PRADEEP KUMAR, SHASHI KANT

HIGH COURT OF ALLAHABAD

1- This appeal has been filed in the High Court (family court) Allahabad and the application is filled jointly by the parties for mutual divorce under Section 13(b) of the Hindu Marriage act which has been rejected and the petition was returned on the ground as it is being filed in less than one year of separation.

2- The time period stipulated by the legislature as provided under Section 13 (b) is fixed as such that the parties get time for introspection. The period given under Section 13 (b) (1) of the act is mandatory and can’t be renounce. The provision to Section 14 of the act is meant to mollify the effect of 1 year limitation when the divorce is taken under Section 13 of the act.

In the view of the above, we don’t find any illegality or infirmity within the challenge order. The petition filed within the one year of marriage on the bottom of mutual consent isn’t in the least defendable.

SMT. SURESHTA DEVI VS. OM PRAKASH

This case was filed as the question emerged in Supreme Court was as to whether was open to one of the spouses at any instance till the judgement of divorce is passed, to take away the consent which was given to the petition filed under Section 13B Act.

The Supreme Court observed the various views which were shown by different High Courts. The Bombay High Court, Delhi High Court and Madhya Pradesh High Court glanced that the critical time for consent for divorce under Section 13B of the Act was when the first petition got filed and if the consent was given voluntarily, and it was not allowed for any of the party to back out from the said consent.

The final decision in this case was validate by a three Judge Bench of the Supreme Court in the Smruti Pahariya Case, wherein the Apex Court said that it is only on the continued mutual consent of the party that a judgement for divorce under Section 13B of the Act will be passed in the Court.

CONCUSION:

So far, we have looked over the Section 13B of the Hindu Marriage Act. Mutual consent in divorce gives chance of polite solution of dispute between spouses. The required things that are given under this Section involves that before filling a joint petition for divorce parties must be surviving and living apart for a period of at least one year and living apart doesn’t necessarily imply physical separation but the parties must not fulfil martial commitments and must not live as husband and wife.

Supreme Court under Article 142 of Constitution can pass the judgement of divorce with waiting for a period of 6 months. And Supreme Court also ruled that silence or not appearing for hearing won’t be given amount to withdrawal of consent.

Written by Shikafa Riyaz, Vaishnavi Kashyap, Ishita Jaiswal of DY Patil Law College, Pune along with Shivani nawre of NLIU.

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