RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

LUCKNOW

PLEADING, DRAFTING AND CONVEYANCING

PROJECT

TOPIC: PETITION FOR DISSOLUTION OF MARRIAGE BY DECREE OF

DIVORCE UNDER S. 13(B)(1) OF THE HINDU MARRIAGE ACT, 1955

Submitted for the project work, B.A. LL.B. (Hons.) 5 years integrated course at Dr. Ram
Manohar Lohiya National Law University, Lucknow.

Under the Guidance of: Submitted By:

SHAKUNTALA SANGAM CHARU SINGH

Asst. Professor of Law, Roll No: 45
Dr. Ram Manohar Lohiya Section ‘A’
National Law University. VIth Semester.
 I. INTRODUCTION

"Marriages are made in heaven, or so it is said. But we are more often than not

made to wonder what happens to them by the time they descend down to earth.

Though there is legal machinery in place to deal with such cases, these are perhaps

the toughest for the courts to deal with.” 1

In India, marriage is treated as a sacrosanct institution, and earlier divorce was not even available

as a legal recourse. Divorce is the legal dissolution of a marriage. In India, religious communities

have their own marriage laws and hence the divorce procedure also depends on the religion of

the couple. Hindus, along with Buddhists, Sikhs and Jains are governed by the Hindu Marriage

Act, 1955. Because of the importance accorded to marriage in India, the divorce procedure here

is a long drawn affair, and can be a source of great agony to both the parties. However, the

process can be considerably shortened if the couple seeks divorce on the grounds of mutual

consent. Obtaining divorce through mutual consent is advantageous in the sense that it saves

both time and money and further, it may also be filed without casting aspersions or assassinating

the character of either party. The costs, time and effort involved in a contested divorce is much

more when compared to divorce on the grounds of mutual consent.

The provision for dissolution of marriage by mutual divorce in India is contained in Section 13 B

of the Hindu Marriage Act, 1955. This section was also amended once in 1976. The procedure

for seeking a divorce by mutual consent in India is initiated by the filing of a joint petition,

supported by affidavits and annexure, and sworn by both the spouses mutually/ jointly, in the

district court having jurisdiction over the matter.

1
Hitesh Bhatnagar v. Deepa Bhatnagar [2011 (4) SCALE 724]
 II. PROCEDURE TO OBTAIN DIVORCE ON THE GROUNDS OF
MUTUAL CONSENT

A happy marriage is a harbor in the tempest of life; an unhappy marriage is a tempest in the harbor
of life.

 PROCEDURE UNDER SECTION 13 B:

The provision for dissolution of marriage by mutual divorce in India is contained in Section 13 B

of the Hindu Marriage Act, 1955. This section was also amended once in 1976. It reads as

follows:

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 they have mutually agreed that the marriage should be dissolved.

(2) 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- 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.

Seeking a divorce in India is a long-drawn out legal affair, where the period of prosecution takes

a minimum of six months. However, the time and money required to obtain a divorce can be

considerably shortened if the couple seeks divorce by mutual consent. In this case, estranged

spouses can mutually agree to a settlement and file for a "no-fault divorce" under Section 13B of

the Hindu Marriage Act 1955. All marriages which have been solemnized before or after the

Marriage Laws (Amendment) Act 1976, are entitled to make use of the provision of divorce by

mutual consent. However, for filing for a divorce on this ground, it is necessary for the husband

and wife to have lived separately for at least a year.

The procedure for seeking a divorce by mutual consent in India is initiated by the filing of a joint

petition, supported by affidavits and annexure, and sworn by both the spouses mutually/ jointly,

in the district court having jurisdiction over the matter. A separation of one year before filing the

case, however it is pertinent to note that actual physical separation is not required, even if both

parties are sleeping in the same bedroom they can be said to be separated for the purposes of

mutual consent, if they are not living together as husband and wife.

Furthermore, a meticulously drafted MoU (Memorandum of Understanding) that settles the

terms on which you part away, people don’t understand the importance of this, this is extremely

important so as to end the matters with a finality once and for all, there are no loose ends and

make sure there is no litigation in future;

 STEPS IN FILING OF PETITION TO OBTAIN DIVORCE ON THE GROUNDS OF MUTUAL CONSENT:

i. Such a divorce may be filed by the couple only after they have lived apart for at least one

year. They should not have lived together as husband and wife during this period.

ii. The couple should be in agreement that they can no longer live together.
 iii. They should have mutually agreed that the marriage should be dissolved and the petition

is presented by both parties to the marriage.

iv. There are some important issues that the couple should be in agreement with, in the

petition, the issues being as follows:

v. Custody of the child/children (if they have any)

vi. Maintenance/Alimony (sum decided by the parties)

vii. Litigation expenses

viii. Regarding any items that are to be returned (streedhan, gifts etc)

ix. A petition supported by affidavits should be presented by the BOTH the spouses, jointly.

This is known as the First Motion Petition for Mutual Consent Divorce.

x. The First Motion Petition should contain a joint/mutual statement by both parties to the

Petition that they no longer wish to stay together due to irreconcilable difference and

should be granted a divorce by the court.

xi. After the First Motion has been filed, the couple has to wait for six months. This gap of

six months is called the cooling off period, to give the estranged couple an opportunity

and adequate time to reconsider their decision of seeking divorce.

xii. After the six months cooling off period has passed and no more than eighteen months

from the date of the first motion, if the couple still seeks to move ahead with the divorce,

they may file a Second Motion Petition for Mutual Consent Divorce. However, the

Second Motion HAS to be filed only after the 6 months and before 18 months of the day

on which the First Motion was filed. However, recently the Hon’ble Supreme Court held

in the case of ‘Devinder Singh Narula vs Meenakshi Nangia’ , that the court need not

always abide by the 6 month rule. Sometimes when it is evident that no amount of time
 and effort can reconcile the couple in question, the court may allow the Second Petition

to be presented before the cooling off period expires.

xiii. If the Second Motion is filed by the couple within the above stipulated time, and the

judge is satisfied that the averments made in the petition are true and all the other

necessary grounds and requirements for divorce have been met, a mutual divorce decree

may be granted by the Court.

xiv. If the Second Motion is not filed within 18 months of the date of the First Motion, the

petition will be considered as abandoned.

xv. If either party decides to withdraw the divorce petition within 18 months of the filing of

the First Motion Petition, the court will initiate an enquiry as regards the withdrawal and

if such party still refuses his/ her consent to the divorce petition, the court no longer has

the right to grant a divorce decree on such petition. BOTH the parties must agree to the

divorce till the time the decree has passed, because the divorce is on grounds of

MUTUAL consent. If any of them withdraw their consent by application before the

Court, before the expiry of the 18 months, court cannot grant a decree of divorce on the

ground of mutual consent any longer. The other party will have no other choice but to

seek divorce on other grounds (cruelty, desertation etc). This has been criticized as

arbitrary and unfair by many family lawyers and jurists in India. Many a time a party

withdraws its consent only to harass another party. Why should the party be allowed to

withdraw consent after the petition has already been filed? A party may not agree to file

the Second Petition mutually, or may withdraw its consent by application before or after

the filing of the Second Petition…and in all of these cases, the Court will no longer be

allowed to pass a decree for divorce on the grounds of mutual consent as such a divorce
 can no longer by MUTUAL. This is because both the parties have to be in complete

agreement, and their consent to such a divorce must be free from any coercion. However,

there are certain cases, where the Court may grant divorce even after consent has been

withdrawn by a party. If the Court feels that one party is simply trying to harass the other

party by withdrawing the petition, and circumstances are such that marriage has

irretrievably broken down and no reconciliation is possible, the court might grant a

decree of divorce even after consent has been withdrawn by one party. This was held in

Ashok Hurra vs Rupa Bipin Zaveri.2

 REVOCATION OF DIVORCE FILED BY MUTUAL CONSENT:

Party changing his mind

Parties filed a petition for divorce by mutual consent and after the first motion, the case was

adjourned for six months as statutorily required, for recording their statements. After about

three months, the wife appeared before the trial court and filed an application for

withdrawing her consent and her statement to that effect was recorded by the trial cort. She

alleged that her consent had been obtained by force, fraud and undue influence. She also filed

an application for dismissal of the divorce petition. However, the trial court instead of

dismissing the petition, framed issue for determining whether the consent of the wife had

been obtained by fraud or under influe. The wife challenged the legality of this order. The

appellate court held that ‘in law she was entitled to withdraw the same divorce petition as her

consent should have continued till the passing of a decree for divorce by mutual consent.

2
1997( 4 )SCC 226
 Thus, where consent to a divorce has been withdrawn by any one of the parties, for whatever

reasons, there is no mutuality remainin. The very idea of providing an interregnum of six

months between the two motions in S. 13 B, is to give the parties time to reflect. If during

that period, a party changes his or her mind, no decree of divorce by mutual consent can be

passed.3

Consent decree even after consent withdrawn by one party

The parties were married in 1970. Fourteen years later, they filed a joint petition for divorce

under S. 13 B of the HMA, 1955. Abput eight months after filing the petition the husband

alone moved the court and pressed his application for divorce. Notice was sent to the wife

and on adjournments and unsuccessful attempts by the trial court for reconcialtion. Within

one year of the filing of the petition, the husband remarried and also had a child. The wife

filed criminal cases for declaring the marriage (second marriage) illegal and the child

illegitimate.

after about 19 months of filing of the petition for divorce, the wife withdrew her consent and

sought dismissal of the petition. The husband objected and contended that she had no right to

withdraw after eighteen months had elapsed. The trial court, however, held that since the

wife withdrew her consent, the divorce decree could not be granted. Against the trial court

order, the husband filed an appeal before a Single judge of the Gujarat High Court. After

going through the entire facts and law, the court came to the conclusion that since the wife

had not withdrawn the petition within the period of eighteen months, and also as the marriage

had irretrievably broken down, the divorce should be granted. The decree of dissolution of

the marriage was made effective from the date of filing of the petition. Under this section a

3
Rupali v. Sunil Datta AIR 2006 P&H 93
 decree dissolving the marriage under this section shall be passed with effect from the date of

the decree. Thus an order made on March 3rd, 1996 was given retrospective effect from

August 21, 1984, the date of filing the petition. The wife filed and appeal and the court

invoked the clean hands doctrine stating that the husband had not come to the court with cean

hands and accordingly refused to grant the divorce.

Against this the husband approached the Supreme Court. A two judge bench of the court

invoked its jurisdiction under Article 142 of the Constitution where in exercise of its

jurisdiction, the court may pass such decree or make such order as is necessary for doing

complete justice. The court conceded that the husband had clearly committed a wrong by

entering into a bigamous marriage pending divorce but exercising its jurisdiction the court

proceeded to grant a divorce conditional on the husband paying an amount of Rs. 10 lakhs

plus Rs. 50,000 as litigation expenses to the wife.4

Consent once given, be unilaterally revoked.

the parties were married in November, 1968 and lived together for about six to seven months.

On January 1985 they moved a petition under Section 13B in the district court. The court

recorded the statements of the parties. The wife filed an application in the court stating, inter

alia, that her statement dated January was obtained under pressure and threat of the husband

and she was not even allowed to meet her relatives before filing the divorce petition. She

therefore prayed for the dismissal of the petition. The Supreme Court elucidated the meaning

of living separately as not living like husband and wife, it does not have any reference to the

place of living. The parties may live under the same roof by force of circumstances, and yet

4
Ashok Hurra v. Rupa Bipin Zaveri AIR 1997 SC 1266
 they may not be living as husband and wife. What is necessary is to live separately for a

period of one year immediately preceding the presentation of the petition.

The next requirement is mutual agreement to dissolve the marriage. The court after satisfying

itself about the genuineness of the averments in the petition, as also that there was no force,

pressure or undue influence, shall pass a decree on the joint motion of both the parties.5

5
Suresta Devi v. Om Prakash AIR 1992 SC 1904
 III. SUMMARY OF FACTS

A marriage between Mr. Rohan Das (husband) and Mrs. Shweta Rohan Das (wife) was

solemnized on 15th August 2009 at Lucknow, by Hindu rites and ceremonies. The said marriage

was consummated thereafter and the parties co-habited as husband and wife at the matrimonial

home i.e. Lucknow. From the very beginning their marriage had hit the rocks as they used to

fight on the smallest of issues and never agreed on any subject. On the 20 th of September 2010

Mr. Rohan without informing Mrs. Shweta, left for Mumbai to pursue work. He returned earlier

this year with an intention to dissolve the marriage. Meanwhile, in this time Shweta too had

worked hard to sustain her own life and thus, both the parties didn’t have place in their life for

each other. Thus, the parties Mr. Rohan Das and Mrs. Shweta Das as petitioners, mutually

seek to dissolve their marriage by obtaining divorce by mutual consent under Section 13 B (1)

of the Hindu Marriage Act. They have thus filed a petition for divorce in the Family Court of

Lucknow.
 IV. PETITION

In the District Court,

PETITION No. 11 OF 2014

IN THE MATTER OF:-

Rohan Das , 25 years, S/o Santosh Das …Petitioner No.1

(AND)

Shweta Rohan Das, 24 years, D/o Prashant Nene …Petitioner No.2

PETITION U/S 13B of HINDU MARRIAGE ACT, 1955

(FOR DISSOLUTION OF MARRIAGE BY MUTUAL CONSENT)

MOST RESPECTFULLY SUBMITTED AS UNDER:-

1. That the marriage between the parties was solemnized on 15th August, 2009 at
Lucknow, by Hindu rites and ceremonies. The said marriage was consummated
thereafter and the parties co-habited as husband and wife at the matrimonial home i.e.
Lucknow. The particulars showing the details of the parties to the present petition are
given hereunder:-

[ PARTICULARS/AFFIDAVIT]

2. That there is no issue out of the wedlock of the parties.

3. That the parties could not adjust with each other due to temperamental differences
and their marriage has broken down irretrievably and it is not possible for the parties
to live as husband and wife any more.

4. That all the efforts of reconciliation between the parties to continue in the present
marriage have failed and there are no further chances of reconciliation between the
parties any more.

5. That the parties are residing separately since 20th September 2010 and there has been
no cohabitation between the parties ever since.

6. That the parties have now decided to dissolve the marriage legally through a decree of
divorce on mutual consent. The parties have settled all their claims, and counter
claims and the respondent has received her entire Streedhan, permanent alimony and
maintenance, and there is nothing due with regard to any other claim between the
parties now.

7. That the present petition is not being filed in collusion.

8. That there are no other divorce proceedings pending before any other court.

9. That the matrimonial home of the parties was at Lucknow and hence this court has
the jurisdiction to grant the decree of divorce as prayed for.

10. That there are no legal impediments in grant of the decree of divorce to the parties on
the basis of mutual consent.

WHEREFORE, Petitioners pray for its orders:

a. It is most respectfully prayed that the court may accept the present petition and grant a
decree of divorce between the parties thereby, dissolving the marriage between the parties.
b. Any other order which the court may deem fit and proper in the facts and circumstances of
the present case.

Rohan D. ……………………………………….………………………..Petitioner No. 1

Shweta R. Das.…………………………………………………………...Petitioner No. 2
Place: Lucknow
Date: 20th February 2014.

Verification:
We the petitioners do hereby verify that paragraph no. 1 to 10 of the above petition are true
and correct to the best of our knowledge and belief.
Signed and verified on 20th of February 2013 at court campus of Lucknow.

Rohan D. ……………………………………….………………………..Petitioner No. 1

Shweta R. Das.…………………………………………………………...Petitioner No. 2
 I. BIBLIOGRAPHY
BOOKS:
1. Desai Kumud, Indian Law of Marriage and Divorce, 8th edn: 2011, Lexis Nexus.

2. K. K. Kusum, Cases and Materials on Family Law, 2nd edn: 2009, Universal Law

Publications.

SITES:
1. http://www.divorcelawyerindia.com

2. http://indialawyers.wordpress.com

3. http://www.lawyersclubindia.com

4. http://www.legalserviceindia.com

5. http://mutualconsentdivorce.blogspot.in/