"Divorce Through Mutual Consent" By Dushyant Tiwari

Marriage has been recognised as a divine ritual within Indian culture. Marriage is not only a union of two people but of two souls or what we call a union between two families. However, if we study the legal language associated with marriages, then the definition of marriage sticks to the conventional definition of an agreement between two parties, i.e. like a contract that can be concluded, in the same manner, a marriage can be annulled as well. The Indian legislature has provided certain legislations related to marriage like the Hindu Marriage Act, Muslim Marriage Act, Indian Christian Marriage Act, and the Special Marriage Act. 

Divorce:

Section 13 of the Hindu Marriage Act discusses the provision of divorce. It states that the husband or wife, any of them, can present a petition before the Court to dissolve their marriage on certain grounds, that is,

• Voluntary intercourse with another person except for his or her partner

• Any of the spouses has treated his or her partner with cruelty,

• Deserted the petitioner for the continuous period of two years and not less than that immediately preceding the presentation of the petitioner,

• Has converted into other religion,

• Has been of unsound mind or suffering from mental disorder to such an extent that it becomes difficult for the petitioner to survive together.

• Has been suffering from leprosy,

• Has been suffering from venereal disease in a communicable form,

• Has renounced the world,

• No whereabouts for the spouse for a period of seven years or more.

The divorce petition can be filed on the above-mentioned grounds. However, some additional grounds are given for the wife on whom she can seek divorce:

• That the husband has been previously married before the commencement of the act or the wife of the husband is still alive,

• That the husband has been guilty of rape, sodomy, or bestiality, etc.

• That the wife and husband were living apart and the husband has been ordered to pay maintenance and no cohabitation has taken place between them for one year.

These are the grounds on which only one party demanding divorce comes to the Court but the act also provides for the provision of Divorce by Mutual Consent also.

Divorce by Mutual Consent:

The provision related to divorce by mutual consent under hindu law has been inserted in the Hindu Marriage Act, 1955, as Sec 13B, by an amendment in the year 1976. In cases where both the parties to a divorce do not have any of the above-mentioned grounds available with them but the parties don't want to live together or they want to end their marriage, they can go for a petition of  divorce with mutual consent under section 13B .

The section states that:

• Subject to the provision of this Act, a petition for the dissolution of marriage by a decree of divorce may be presented to the district court by both the parties in a marriage together, on the ground that they have not been living separately for a period of one year or more and that they have not been able to live together and that they have mutually agreed that their 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-sec (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 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.

Similarly, the Special Marriage Act, 1955 also talks about the grounds for mutual consent divorce on  which is pari materia to the above-mentioned provision.

Divorce by Mutual Consent Hindu law:

Persons seeking divorce mutual consent shall have to fulfil the requirements mentioned under Hindu Marriage Act such as:

• The parties must have to live separately since at least one year,

• The parties are unable to leave together, and

• Both the parties must have agreed to dissolve the marriage.

In the latest supreme court judgement on divorce by mutual consent case of Sureshta Devi v. Om Prakash, the Supreme Court while pronouncing judgement stated that the expression living separately indicates the parties not living like husband and wife even if they are living under the same roof. The word has a connection with the place of living. What is important is that the parties have no desire to live together or to perform the marital obligations and both the parties are living separately for a period of at least one year before the presentation of the case.

In the same case of Divorce mutual consent latest judgement, the Supreme Court announced the judgement by stating the expression “parties are not able to live together” indicates that the breaking down of marriage is because of that there is no possibility of reconciliation between them. It is not necessary to show that the parties have not been able to live together but a mere presentation of a petition for divorce by mutual consent would be sufficient.  Further, it is very important to determine whether the parties have given consent freely and not under any kind of force, threat or fraud or undue influence. 

However, after fulfilling all of the above requirements and filing a petition for divorce by mutual consent, the parties must have to wait till the period of six months which is termed as cooling period. This provision is given to parties to re-think their decision. After the expiration of the said period parties may go to court by way of joint motion within the 18 months from the filing of the first petition. 

Conclusion:

Divorce is a word which people always take in a negative sense. Even the Hindu Marriage Act, 1955 considers divorce as the last resort. The judges do not pronounce the decree of divorce so easily but instead, they try to solve the matter. However, divorce by mutual consent is not new to India and the past studies show that there is an increase in the number of divorce cases through mutual consent. Divorce through mutual consent is the best way to end the marriage peacefully and move on in life. 

WEBLIOGRAPHY:

1. Divorce by Mutual Consent under Hindu Law, Retrieved from https://blog.ipleaders.in/mutual-consent-divorce/

2. Divorce by Mutual Consent, Retrieved from
   https://www.lawctopus.com/academike/divorce-by-mutual-consent/#:~:text=Divorce%20by%20mutual%20consent%20is%20addressed%20under%20S.,must%20resolve%20towards%20the%20end%20of%20the%20marriage.

Divorce by Mutual Consent under Hindu law, Retrieved from https://easykanoon.com/divorce-by-mutual-consent-under-hindu-law/