January 15, 2019
Divorce by Mutual Consent has emerged as one of the most sought after modes of obtaining divorce in the recent times. Section 13B of the Hindu Marriage Act, 1955 enumerates the law pertaining to divorce by mutual consent. One of the basic essential ingredient to obtain divorce through mutual consent is that both the parties i.e. husband and wife mutually agree to obtain divorce.
Essential Ingredients of Section 13B of the Act:-
- A divorce petition is presented by both the parties before the District Court.
- The provision applies to marriages solemnised before or after the commencement of the Marriage Laws (Amendment) Act, 1976.
- The parties to the marriage should have been living separately for a period of one year or more.
- The parties should satisfy the Court that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.
- Period of Interregnum- The petition should not have been withdrawn within six months after the date of the presentation of the petition and not later than eighteen months after the said date.
Why is period of Interregnum given?
The High Court of Rajasthan answered this question in the case of Suman v. Surendra Kumar to the effect that 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.
What does the expression “living separately” mean?
In the case of Sureshta Devi v. Om Prakash, the Supreme Court opined that 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.
Can a Party step back or resile from Undertaking for Divorce given under Section 13B (1) of Hindu Marriage Act
In the cases of Shikha Bhatia vs. Gaurav Bhatia & Ors. and Avneesh Sood vs. Tithi Sood, the Courts had opined that a spouse, who gives an undertaking to the court to abide by the consent given in the First motion for dissolution of marriage under Section 13B (1) of the Act and for moving a Second motion petition, cannot be permitted to resile from such an undertaking on the basis of an agreement arrived at between the parties and any attempt to resile therefrom would amount to a breach of the undertaking accepted by the court and therefore, attract contempt proceedings.
In another case i.e. Rajiv Chhikara vs. Sandhya Mathu, the Division Bench of Delhi High Court opined that resiling from a settlement amounts to mental cruelty. The Court in the case observed that the parties had been living separately since 2009 and their relationship was beyond repair. Hence in such circumstance one spouse insists of retaining the matrimonial bond then the same would be like putting the spouse under intense situation of mental cruelty.
Whether it is open to one of the spouses at any time till decree of divorce is passed, to withdraw the consent?
Smt. Sureshta Devi vs Om Prakash- In this case, the question that arose before the Supreme Court was as to whether was open to one of the spouses at any time till a decree of divorce is passed, to withdraw the consent given to the petition filed under Section 13B of the Act?
The Supreme Court noticed the divergent views expressed by different High Courts. The Bombay High Court, Delhi High Court and Madhya Pradesh High Court took a view that the critical time for the consent for divorce under Section 13B of the Act was when the first petition was filed and if the consent was given voluntarily, it was not possible for any party to withdraw the said consent.
On the other hand, the Kerala High Court, Punjab and Haryana High Court and Rajasthan High Court held that it is open to one of the spouses to withdraw the consent given to the petition at any time before the court passes a decree of divorce.
On interpreting Section 13B(2) of the Act and analyzing the divergent views expressed by different High Courts, the Supreme Court approved the view expressed by the High Courts of Kerala, Punjab & Haryana High Court and Rajasthan on the interpretation of Section 13B(2) of the Act and held:
That from the analysis of the Section, it will be apparent that the filing of the petition with mutual consent does not authorise the court to make a decree for divorce. There is a period of waiting from 6 to 18 months. This interregnum was obviously intended to give time and opportunity to the parties to reflect on their move and seek advice from relations and friends. In this transitional period one of the parties may have a second thought and change the mind not to proceed with the petition. The spouse may not be party to the joint motion under sub-section (2). There is nothing in the Section which prevents such course. The Section does not provide that if there is a change of mind it should not be by one party alone, but by both.
At the time of the petition by mutual consent, the parties are not unaware that their petition does not by itself snap marital ties. They know that they have to take a further step to snap marital ties. Sub- section (2) of Section 13-B is clear on this point. It provides that “on the motion of both the parties‖ …. if the petition is not withdrawn in the meantime, the Court shall pass a decree of divorce.
What is significant in this provision is that there should also be mutual consent when they move the court with a request to pass a decree of divorce. Secondly, the Court shall be satisfied about the bonafides and the consent of the parties. If there is no mutual consent at the time of the enquiry, the court gets no jurisdiction to make a decree for divorce. If the view is otherwise, the Court could make an enquiry and pass a divorce decree even at the instance of one of the parties and against the consent of the other. Such a decree cannot be regarded as decree by mutual consent.
The decision in the case of Sureshta Devi case was endorsed by a three Judge Bench of the Supreme Court in the Smruti Pahariya case, wherein the Apex Court stated that it is only on the continued mutual consent of the parties that a decree for divorce under Section 13-B of the said Act can be passed by the court. If petition for divorce is not formally withdrawn and is kept pending then on the date when the court grants the decree, the court has a statutory obligation to hear the parties to ascertain their consent. The court has to be satisfied about the existence of mutual consent between the parties on some tangible materials which demonstrably disclose such consent.
In a recent case, the High Court of Delhi has also issued Guidelines for Recording Undertaking in Divorce by Mutual Consent Cases.
The case can be accessed here.
In the case, the Delhi High Court was confronted with a batch of contempt petitions, alleging inter alia willful disobedience of the undertaking given by a spouse to appear, sign and file, both, the Section 13B(1) petition and the Section 13(B)(2) motion under the Hindu Marriage Act, 1955 (HMA).
The issues that were raised in the instant case were answered by the Division Bench of the Delhi High Court in the following manner:
Whether a party, which has under a settlement agreement decreed by a Court undertaken to file a petition under Section 13B(1) or a motion under Section 13B(2) of the Act, 1955 or both and has also undertaken to appear before the said Court for obtaining divorce ―can be held liable for contempt, if the said party fails to file or appear in the petition or motion or both to obtain divorce in view of the option to reconsider/renege the decision of taking divorce by mutual consent under Section 13B(2) of the Act?
The answer to Question (A) is yes. The distinguishing feature of Section 13B of the Hindu Marriage Act is that it recognizes the unqualified and unfettered right of a party to unilaterally withdraw the consent or reconsider/renege from a decision to apply for divorce by mutual consent, notwithstanding any undertaking given in any legal proceeding or recorded in any settlement/joint statement, in or outside the court, resulting in a consent order/decree, to cooperate with the other spouse to file a petition under Section 13B(1) or a second motion under Section 13B(2) of HMA, or both. Withdrawal of the consent even at the stage of the enquiry, as contemplated under Section 13B(2) of HMA, is also in exercise of the right available to a party under the very same provision.
Whether by undertaking before a Court to file a second motion under Section 13B(2) of HMA at Section 13B(1) stage or by giving an undertaking to a Court to that effect in a separate court proceeding, a party waives its right to rethink/renege under 13B(2) of the Act, 1955? If yes, whether such right can be waived by a party under Section 13B(2) of HMA?
Notwithstanding any undertaking given by a party before a court to file a Second motion under Section 13B(2) of HMA or at the Section 13B(1) stage or in any separate court proceedings, its right to rethink/renege under Section 13B(2) of HMA, cannot be waived for the reason that such a waiver is proscribed by the Statute that keeps a window open for the parties to withdraw their consent at any stage till the decree of divorce is finally granted.
The right of withdrawal of consent in the above proceedings can be exercised at any stage and exercise of such a discretion cannot be treated as being opposed to public policy.
Whether any guidelines are required to be followed by the Court while recording the undertaking/agreement of the parties with respect to a petition under Section 13B(1) or a motion under Section 13B(2) of HMA, 1955 or both for obtaining divorce?
The Division Bench of the Delhi High Court in the case issued to be followed by the Court while recording undertaking/agreement of the parties with respect to a petition under Section 13B(1) or a motion under Section 13B(2) of the Act, 1955.
Contempt Proceedings u/ Section 13B (1) of the Act
This aspect fell for consideration of the Court in the case of Dinesh Gulati v. Ranjana Gulati, wherein the appellant husband took recourse to contempt proceedings against the respondent/wife on a grievance that despite a mutual consent recorded before the Family Court to dissolve their marriage, the wife was not cooperating with the husband. Further, in the case suo moto contempt proceedings were initiated by the learned Family Court against the husband for non-compliance of the consent order.
The Division Bench held that such an order of initiating suo moto contempt proceedings neglects the mutuality aspect provided for under Section 13B of the Act and once the parties were unable to or did not wish to proceed with the agreement for mutual consent divorce, then the only recourse was to restore the original divorce petition.
When can Court Presume Consent u/Section 13B of HMA?
In the case of Smruti Pahariya vs. Sanjay Pahariya, the Apex Court held that consent cannot be presumed by the absence in Court of one spouse at the end of 6 months cooling off period in mutual consent divorce petition. It was also opined that courts cannot presume consent of a party merely because both the parties are signatories to the First motion under Section 13B of the Act. Before passing a decree of divorce, the court remains under an obligation to satisfy itself as to whether the consent given by the parties is a valid one.
The terms of Settlement shall not be against the Public Policy
Hirabai Bharucha vs. Pirojshah Bharucha– In the case the High Court was of the view that every effort must be made by the Courts to sustain the institution of marriage. That if a contract between the spouses recording the terms of settlement runs against the public policy, then it must be treated as void ab initio and unenforceable in law and in those circumstances, contempt proceedings cannot be resorted to.
Consent can be Withdrawn Even at the Stage of Enquiry u/Section 13B(2) of the Act
Rajesh R. Nair vs. Meera Babu– In the case, the issue that was raised was whether once a consent is given and later on, it is withdrawn by one of the parties, can the court enquire into the bonafides or otherwise of the withdrawal of the said consent?
The said issue was examined by a Division Bench of the Kerala High Court, whereby the Court remarked the following:
By providing that the enquiry under S. 13B(2) shall be only if consent is not withdrawn, the statute specifically recognizes the right of the parties to withdraw the consent even at the stage of the enquiry contemplated under S. 13B(2). That right available to the parties is an unqualified right and for any reason whatsoever, if the parties or one of them, choose to withdraw their consent, such withdrawal of consent is in exercise of the right available under S. 13B(2).
If that be so, it is not for the court to probe into the bona fides or reasonableness of withdrawal of consent and once consent is withdrawn, the only option available to the Court is to close the matter at that stage. If that be the legal position, we are unable to find any fault on the part of the Family Court in having dismissed the petition on the ground of non-compliance of the requirement of S. 13B(2) of the Act.
Consent to continue till the date of Granting Decree of Divorce
Mr.Prakash Alumal Kalandari vs Mrs.Jahnavi Prakash Kalandari– In this case, the Bombay High Court ruled that if the Petition is filed “simplicitor under Section 13B of the Act” for divorce by mutual consent, the Court must satisfy itself that the consent given by the parties continues till the date of granting decree of divorce. Even if one party unilaterally withdraws his/her consent, the Court does not get jurisdiction to grant decree of divorce by mutual consent in view of the mandate of Section 13B of the Act.
It was further held that before the decree is passed, one party cannot be allowed to unilaterally withdraw the consent if the other party has already acted upon the Consent Terms either wholly or in part to his/her detriment. In other words, the Court will have to be satisfied that: (i) there is sufficient, good and just cause for allowing the party to withdraw his consent, lest, it results in permitting the party to approbate and reprobate; (ii) that the other party would not suffer prejudice which is irreversible, due to withdrawal of the consent. If this twin requirement is not satisfied, the Court should be loath to entertain the prayer to allow the party to unilaterally withdraw his/her consent.
Courts shall make every Effort to Sustain Marriage
Jyoti vs. Darshan Nirmal Jain– In this case, the appellant/wife had challenged a decree of dissolution of marriage granted by the Family Court under Section 13B of the Act on the ground that her consent had been obtained by deceit and fraud and had argued that even if she had given her consent, the husband and wife had not separated for a minimum period of one year, which is an essential ingredient of Section 13B of the Act, due to which dissolution could not have been granted.
In the above factual matrix, the Division Bench of the Gujarat High Court had laid much stress on the fact that marriage is an institution that ought to be sustained and the society and courts must make every effort to build broken bridges between spouses and held:
That such conditions are statutorily provided before a petition for dissolution for divorce on mutual consent can be presented. It was not even open for the parties to waive such conditions. It is not even the case of the parties that such conditions were waived in any case. Any other view would permit the parties to marriage to present a petition for dissolution of marriage within days of marriage urging the court to accept a consent petition and dissolve the marriage merely on the ground that the parties have agreed to dissolve such a marriage. Such a view would be opposed to the very basic philosophy and principle that as far as possible, the society and the courts make all attempts to ensure that the institution of marriage sustains and is not lightly broken. It is because of these reasons that invariably provisions are made in the statute providing for a cooling-off period before which, no petition for dissolution of marriage can be presented, not only on mutual consent but on any other grounds as well. It is because of this reason that section 23 of the Hindu Marriage Act as well as section 9 of the Family Courts Act make detailed provisions enjoining upon the courts to make all efforts to bring about a settlement and reconciliation between the parties to such divorce petition.
Is 6 Months Waiting Period/Cooling Off period for Divorce by Mutual Consent mandatory?
In a recent landmark case of Amardeep Singh v. Harveen Kaur, the Supreme Court made a notable observation by holding that 6 months waiting/ cooling –off period as contemplated under Section 13B(2) of the Act is not mandatory.
The Supreme Court held that the period of interregnum or cooling off period of 6-18 months provided under Section 13B(2) of the Hindu Marriage Act, 1955 is not mandatory but a directory provision and can be waived off under certain circumstances.
The Court further observed that in view of this, Courts can exercise its discretion depending on the facts and circumstances of each case and waive off the stipulated period where there is no possibility of resuming cohabitation and there are chances of alternative rehabilitation.
In this case, the parties were living separately since 2008. In 2017 the parties arrived at a settlement and applied for divorce by mutual consent. In the case, the parties prayed the Court to waive off the period of 6 months as prescribed under Section 13B(2) of the Hindu Marriage Act, 1955 on the ground that they have been living separately for the last 8 years and that there was no possibility of their re-union.
Enquiry under Section 10(2) of Divorce Act- Mandatory for Divorce by Mutual Consent- Kerala High Court
One of the seminal issue that fell for consideration before the High Court of Kerala in this recent case was whether the Family Court could allow dissolution of a marriage without conducting an enquiry as contemplated in sub-section (2) of Section 10A of the Divorce Act and without insisting upon, either the presence of the parties or affidavits of the parties?
In the case, the appellant and the respondent had jointly filed petition seeking dissolution of their marriage based on mutual consent under Section 10A of the Divorce Act, 1869 (dissolution of marriage by mutual consent) and accordingly the marriage was dissolved between the parties and the Court granted permanent custody of the minor children to the respondent. Aggrieved by the grant of custody of children to the respondent, the Appellant challenged the Family Court’s order and also contended that the mandatory duty cast upon the court under Section 10A(2) of the Act has not been discharged legally.
It was contended that in the case there was no satisfaction recorded on the essential ingredients of Section 10A for granting a dissolution of the marriage by mutual consent as the Court did not take into consideration the fact that the ‘interregnum waiting period’ is intended to give time and opportunity to the parties to reflect on their move and to seek advice from relatives and friends. That being a mandatory requirement, non-compliance of the same will nullify the decree of dissolution.
The Court noted that a decree dissolving the marriage under Section 10A of the Act is made based on the satisfaction of the Court regarding existence of certain basic ingredients and statutory requirements. Thus, such a decree cannot be termed as a decree passed merely on consent of the parties.
That the waiting period of six months provided under Section 13B(2) of the Hindu Marriage Act is the transitional period during which one of the parties may have a second thought and a change in the mind not to proceed with the petition and to remain or abstain from the joint motion to be made under sub-section (2).
Whether there was proper compliance with the statutory formalities contemplated under sub-section (2) of Section 10A?
With reference to the facts of the case, the High Court observed that the impugned judgment and decree was vitiated by material irregularity due to the failure on the part of the court below in conducting a proper enquiry at the time of the second motion at the time of expiry of the statutory waiting period and in recording satisfaction based on such an enquiry conducted.
In view of the aforesaid, the High Court allowed the appeal and set aside judgment passed by the Family Court in the case.
The case can be accessed here.
Whether Divorce Decree by Consent is Appealable?
In a recent case decided by the High Court of Allahabad, the Court has opined that where the consent itself is disputed and is not said to be genuine the same can be assailed by way of appeal.
Here it would be relevant to throw some light on the law prevailing in context of appeal against decree passed by consent of parties. Section 19(2) of the Family Courts Act, 1984 prohibits filing of an appeal against a decree passed with the consent of the parties.
Hence, the intrinsic issue that fell for consideration by the Court was whether an appeal would lie under Section 19 of the Family Courts Act, 1984 against a decree passed under Section 13-B of the Hindu Marriage Act, 1955 by mutual consent?
The Court in view of the facts and circumstances of the case held that a consent decree or order cannot be assailed by way of appeal but where the consent itself is disputed and is not said to be genuine, bonafide or free it becomes the solemn duty of the Court to hold an inquiry in this respect before proceeding to pass a decree of divorce.
The entire case can be accessed here.