Divorce by mutual consent as per Indian Law
India is a land of varied religious communities having their own marriage laws, the divorce procedure too varies, according to the community of the couple seeking divorce. All Hindus as well as Buddhists, Sikhs and Jains can seek divorce under the Hindu Marriage Act 1955.
Insertion of Section 13B in the Hindu Marriage Actwas made perhaps as a response to an overwhelming demand in society for such a provision.
The felt necessities of our changing society require that there should be no insistence on the maintenance of a marriage which has broken down and thus a marriage in which parties cannot live together should be dissolved.
13B.Divorce by mutual consent
(1) 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 solemnized 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 thy have mutually agreed that the marriage should be dissolved.
(2) On the motion of both the parties:
The parties made no 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petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been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.
However, not all estranged couples agree on the desirability, grounds or the conditions of divorce. In such cases, one party files for divorce in the court, but the other contests it. This forms the case for the filing of a contested divorce.
A mention must be made in the petition that the parties have not been able to live together and have been living separately for a period of at least one year. This period is mandatory. Therefore, no application for divorce by mutual consent can be filed within a period of one year from the date of marriage.
Petition under section 13B must also mention that the parties have mutually agreed that marriage should be dissolved. This statement is also mandatory. The petition under section 13B should be filed only after both the parties appreciating their circumstances come to the conclusion that they cannot live together as husband-wife.
This conclusion must be arrived at independently by both the parties to the marriage and without any coercion of pressure. The decision to get the divorce should be only theirs and the application cannot be filed if one of the parties is not ready for divorce or if the parties are filing the application on someone else’ instigation.
A petition for mutual divorce once presented before the Court of District Judge is taken up on the motion of the parties only after a period of six months has expired from the date when the petition was first presented before the Court. For instance, if the petition was presented on 01/01/2013, it will be taken up by the Court on the motion of the parties made after the expiry of at least six months.
Therefore, the parties can move their motion for the taking up of their petition only on 02/07/2013 and not earlier. However it is to be remembered that this motion should be made after six months from the date of presentation of the petition but before the expiry of 18 months from the said date, i.e. the date of presentation. Hence in the above example as has already been stated, the parties can move a motion for taking up of their petition only on or after 02/07/2013 but this motion must be made before the expiry of 18 months from the date of presentation, i.e. before 01/07/2014.
The Court has to be satisfied that the parties cannot live together as husband-wife and also that the petition is filed only as per the prescribed time and that both the parties have filed the petition voluntarily with their respective free consents and not under any fraud, coercion, undue influence or force and only after fully understanding the implication.
Once the Court arrives at this satisfaction, decree of divorce under section 13B shall be passed in favour of the parties. The Supreme Court has held that mutual consent must continue till divorce decree is passed and revocation of consent by either of the parties at any time before the decree is passed is fatal to the proceedings [AIR 1992 SC 1904].