Ashutosh Rajput | Hidayatullah National Law University | 9th May 2020
This article will exhaustively talk about the divorce by mutual consent. It will deal with how the perspective of divorce has been changed over time and its application and consequences. It will be dealt with as per the Hindu Law.
Introduction
The physical separation of parties to dissolve their ties with the promulgation of the order by the competent court may be termed as divorce. Initially the divorce was not recognized under the ancient law as Manu who is also known as the first lawgiver considers marriage as an indissoluble union of husband and wife which is made through the sacrament. But many great philosophers contended that if a person has a right to marry someone then such person also has a right to dissolve their marriage with such a person. In the present time, after the divorce is made a legal right, the marriage is being treated as a contract rather than a sacrament. The concept of divorce by mutual consent has recently been added in section 13-B of the Hindu Marriage Act, 1955 by the (Marriage Laws Amendment) Act, 1976.
Retrospective effect
The provisions incorporated after the amendment of 1976 will also be applicable to the marriages solemnized before the year of 1976.
Prior requisite
The parties seeking enforcement of the decree by mutual consent should have been living separately for at least one year before filing such petition and have mutually consented for the same. Sometimes it happens that even though they have been living together but still wants such decree; therefore the willingness of living together as a husband and wife should not be present as was held by the Supreme Court in the case of Chandrakala Menon v. Bipin Menon[1]wherein it was laid that ‘they were living separately’ and ‘they were not able to live together’ must be read together.
Both the party with common intention has reached to a conclusion that both cannot live with each other and both have consented to divorce and had not consented under the influence of coercion and undue influence.
Jurisdiction & Competent Court
The petition for divorce can be filled in any of the district courts where any of the parties is rescinding. As per section 13B (1) of the Hindu Marriage Act, 1955 the petition is to be presented by both parties together.
Initiation of proceeding
After filling the petition through mutual consent, the court as per section 13B (2) of the Hindu Marriage Act, 1955 will provide for a cooling period. Cooling period is the period of six months which is granted by the court with the intention of giving both the party’s time to rethink. The motive behind giving said time period is because the marriage is considered as the strongest union and which cannot be done and dusted away easily. If in this time period any of the parties takes their consent back then the court should treat the petition as rejected.
The Supreme Court in Amardeep Singh v. Harveen Kaur[2]observed that the prescribed cooling period is mandatory and not directory. It can be waived if the marriage is broken down with no possibility of a reunion.
After the lapse of six months the court will give an additional time period of 12 months which is called a transition period. So the total time period of the divorce sought by mutual consent may go up to 18 months. The motive behind giving such an additional time period is to make them rethink the ongoing petition. The Supreme Court in Sureshta Devi v. Om Prakash[3]laid that the time period given under divorce by mutual consent is given so that the parties shall rethink once more and may take back their consent by consult with their friends and relatives.
Withdrawal of Consent
Either party can withdraw their consent before passing of the divorce decree. It can be revoked unilaterally. The Supreme Court in Hitesh Bhatnagar v. Deepa Bhatnagar[4]clarified that one of the parties may withdraw their consent at any time after 18 months of such a petition but before passing the divorce decree. Mostly this withdrawal arises when the withdrawing party comes to know that their consent has been taken forcefully or unduly. The party may also revoke their consent when the party after rethinking comes to the conclusion that he/she can live with the other party.
Collusion v. Consent
One of the major drawbacks of obtaining divorce decree under mutual consent in the court of law is collusion. Collusion here means malice intra consent of the parties to deceive the court with wrong facts so that the court may approve the willingness of the parties to such divorce, without regressive fact check. It is considered bad in law. If the court gets to know whilst proceeding is ongoing then it can rescind the petition.
Whereas consent is the bona fide intention of the parties to file for the petition willingly to make the court they were not willing to live together. It will be considered good in law as it pertains to not deceive the court rather states only true facts.
Supreme Courts discretion
Article 142 of the Constitution of India gives immense power to the Supreme Court wherein such court can do complete justice to the parties within its jurisdiction in the manner which would benefit both the parties. The Supreme Court by its extraordinary power can convert a proceeding under section 13 to that under section 13B.
Conclusion
As stated earlier marriage is the strongest union therefore the dissolution of such union has to be made under strict compliance and court thus ensures such strict compliance. It can be seen that the court’s perspective of divorce has been changed with respect to time and now more forms of divorce have been included. The benefit of obtaining a divorce through mutual consent is that no allegation will be made by either party be it in good faith or in bad faith.
[1] (1993) 2 SCC 6
[2] AIR 2017 SC 4417
[3] AIR 1992 SC 1904
[4] AIR 2011 SC 1637
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