NATIONAL UNIVERSITY OF STUDY AND RESEARCH IN LAW

RANCHI

Research Paper on:

“DIVORCE BY MUTUAL CONSENT UNDER HINDU MARRIAGE

ACT, 1955”

Supervised by- Submitted by-

Dr. Sangita Laha Shristi Shreya
Associate Professor Sem: III’ B
(Faculty of Family Law) Roll no: 958
INTRODUCTION
Hindu marriage joins two individuals for life, so that they can pursue dharma i.e.duty, artha i.e.
possessions, kama i.e physical desires, and moksha i.e. ultimate spiritual release together. This
union of two individuals as husband and wife is recognized by law in India. Problem occurs
when the two are not able to live with each other. In that case the ultimate result is divorce. In
this paper an attempt has been made to discuss the divorce by mutual consent in detail.
onetheless, it is a relation between two people and since no human is perfect it is highly probable
that two people do not feel compatible with each other so as to live together a whole life.
Therefore, it can be seen that the cases of divorce are fast rising even in countries like India
where marriages are considered to be made in heaven. In these circumstances, it is always better
that couple take divorce by mutual consent so as to avoid further disputes, time and money.

This paper will essentially deal with the idea of divorce on grounds of mutual consent. Section
13 B of the Hindu Marriage Act, 1955 and Section 28 of the Special Marriage Act, 1954 deals
with the provision of divorce on grounds of mutual consent. This project will analyse these
sections and also deal with the various amendments incorporated in these sections.

The Hindu law of divorce, as codified under the Hindu Marriage Act, 1955, has accommodated
three theories namely ‘Fault’ or ‘Guilt’ theory, ‘Break down’ theory and ‘Consent’ theory. Under
the fault theory, marriage can be dissolved only when either party to the marriage had committed
any matrimonial offence. Under this theory, it is necessary to have a guilty and an innocent
party; and only the innocent party can seek the remedy of 2 divorce. Whereas under the no-fault
theory, the spouse asking for a divorce does not have to prove that the other spouse did
something wrong or any matrimonial offence. All states allow no fault divorces. To get a no fault
divorce, one spouse must simply state a reason for the divorce that is recognized by the Law.

OBJECTIVE OF THE RESEARCH

RESEARCH QUESTION
 To know the necessity to introduce divorce by Mutual consent as one of the ground for
divorce?
 To understand the concept of Divorce by mutual Consent under Hindu Marriage Act
(scope, essentials, application).
 How other theories of divorce i.e Guilt theory and breakdown theory is different from
mutual concept theory
RESEARCH METHODOLOGY
The methodology adopted is largely analytical and descriptive. This Paper shall be based on
reading of secondary sources which includes various books, journals and articles relating to the
topic. A number of case reference have been made with the help of online research databases
which include Manupatra, SCC Online and Western India. Online journals were referred from
online databases Jstore and Heinonline.

CHAPTERIZATION
This paper shall be divided into following chapters

1. INTRODUCTION
2. CONCLUSION

LITERATURE REVIEW
CHAPTER II. DIVORCE BY MUTUAL CONSENT

Mutual consent as a ground for divorce has been introduced on the Hindu Marriage Act since
1976. Prior to 1976 the only Indian statute providing for divorce by mutual consent was the
Special Marriage Act 1954.1 Persons married under the provisions of this Act could get their
marriage dissolved by mutual consent if the marriage failed and the parties so wished. The
Marriage Laws (Amendment) Act 1976 added section 13B to the Hindu Marriage Act thereby
introducing mutual consent as a ground for divorce. Clause 1 of section 13-B of Hindu Marriage
Act, states the essentials for Divorce by Mutual consent, it is read as:

“Subject to the provision 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, on the ground that they have not been able to live together and that they have
mutually agreed that the marriage should be dissolved.”2

In simple understanding the requirements which have to be satisfied before a petition for divorce
by mutual consent can be made are: First, the parties have been living separately for a period of
at least one year. The idea behind this requirement is that if they have lived separately for so long
there is a presumption that they are not interested to continue with the relationship. Second, they
have not been able to live together. Third, they have mutually agreed to have the marriage
dissolve without any force, fraud or undue influence.

CHAPTER II.1 Living separately

The Supreme Court of India in the case of Sureshta Devi v Om Prakash 3has ruled out “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 same roof by way of circumstances, and yet they may
not be living as husband and wife. What seems to be important is that they have no desire to
perform marital obligations and with that they have been living separately for a period of one
year immediately preceding the presentation of the petition.” It has been ruled out by Supreme
1
S. 28 of Special Marriage Act, 1954.
2
Section 13-B (1) of Hindu Marriage Act 1955.

3
Court in various cases that the expression “have been living separately’ does not necessarily
means physical separation or living separately and apart what is material is that no marital
obligations are performed between the spouses and they are not living together as husband and
wife.

After establishing the first requirement that the parties were living separately for one year or
more, the second point that has to be established is that the parties have not been able to live
together.

CHAPTER II.2 Parties have not been able to live together

In Sureshta Devi v Om Prakash4, the Supreme Court observed that expression “have not been
able to live together” seems to indicate the concept of broken down marriage so much so that
there is no possibility of any reconciliation. The parties need not establish the fact that they have
not been able to live together. The very fact that they have presented a petition by mutual
consent is indicative of this fact that they have not been able to live together.5 However, it is very
imperative to determine whether consent given by both the parties is free and not obtained by
any kind of force, fraud or undue influence.

On the other hand clause 2 of section 13-B States procedural party of this Divorce, it is read as:

“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 declearing the
marriage to be dissolved with effect from the date of the decree.”6

Under the this clause of the section if the petition is not withdrawn, then, on the motion of both
parties, made no earlier than six months after the date of petition and not later than 18 months

4
5
Paras Diwan, Law of Marriage & Divorce (5th, Universal Law Publishing Co., New Delhi 2008) 529
6
Supra note 2.
after this date, the court shall proceed with it. Before passing a divorce decree it has to satisfy
itself, after hearing both the parties and making requisite inquiries, that averments made in the
petition are true. It is only after such satisfaction that a decree for divorce by mutual consent.

CHAPTER II.3 How to File a Mutual Consent Divorce Petition?

The mutual consent divorce petition is a form of affidavit, which is submitted in the family court
of the district. Once the joint petition is filed, both the husband and wife statement is recorded.
After that, divorce matter is adjourned for span of six months.

After six months both husband and wife will have to present themselves again in the family court
for making a second motion. Without confirming the mutual consent in the second motion decree
of divorce is not granted.

CHAPTER II.4 Can one of the party withdraw the Consent for Divorce?

If we look at the wording of the section we find that nowhere does it say that the withdrawal of
the application has to be by both the spouses together and that one of the parties cannot
withdraw. And obviously when even one of the parties withdraws, the mutuality of consent to
have the marriage dissolved, which they had contemplated is no more.

This issue of withdrawal by one party can first observe in two cases namely, Jayashree v.
Ramesh7 and Nachhattar Singh v. Harcharan Kaur, 8are significant.

In Jayashree, High Court after consideration of the provisions of section 13-B and order XXIII of
the Code of Civil Procedure 1908,9 the court came to the conclusion that such a petition could
not be withdrawn without the consent of both the parties. In this case since the wife, who was a
party to the joint petition, had not consented to the withdrawal or abandonment of the petition,
the same was proceeded with. If the consent was free and not vitiated, it is not possible for any of
the party to nullify the petition by withdrawing the consent. In view of this, divorce by mutual
consent was decreed.

7
. A.I.R. 1984 BOM. 30.
8
A.I.R. 1986 Puni. & Har. 20.
9
5. Rule 5 of this order provides restriction on withdrawal of a petitition or elaim by one petitioner without the
consent of the other
The same issue was involved in Nachhattar Singh the High Court in a very brief judgment
allowed the appeal and held:

- The Act does not envisage withdrawal of consent by one party. The petition can be dismissed
as withdrawn only if both the parties who had filed the petition together agree to withdraw the
same.

-If both the parties had voluntarily consented to file the petition for dissolving the marriage by
mutual consent and all the other conditions mentioned in sub-section (1) of s. 13B of the Act are
fulfilled, it will not be open to a party to withdraw the consent.10

The supreme court in Sureshna Devi v Om Prakash11 held that a party to the petition for divorce
by mutual consent can unilaterally withdraw their consent at any time till passing of the decree
under this section. The contention of the court was that the interregnum of 6 to 18 months
contemplated under clause 2 of section 13-B was intented to give time and opportunity to the
parties to reflect on their move and seek advice from relation and friends.

Hence, the withdrawal can be jointly by both the parties or severally by one of them. In fact
where both change their mind and decide not to proceed with divorce application, there is no
need for them to even withdraw the application. No covert act of withdrawal is required. The
same stands automatically withdrawn after a period of 18 months if the parties do not move for a
divorce. Thus viewed in this context also, withdrawal is more significant when there is a change
of mind by one of them. 13B indicates this. The words used in section are : "On the motion of
both the parties... if the petition is not withdrawn in the meantime the Court shall... pass a decree
of divorce....". Thus what is needed is, first, that the petition should not have been withdrawn
and, second , that both the parties shall make the move for the decree. There is yet another
argument to support this contention. The section envisages jointness and mutuality right from the
time of initial application uptil the time when the court has to make the decree for divorce. Under
sub-clause (2), before a decree of divorce is passed, the court has to hear the “parties" and satisfy
itsef

10
Id. at 201-02
11
A.I.R (1992) SC 1904
CHAPTER II.5 What is the crucial time for the Withdrawal of the Consent?

The High Court in Jayashree v. Ramesh held that the crucial time for the consent for divorce
under the section was the time when the petition was filed. But under the section, divorce does
not immediately follow the joint petition. There is a period of waiting (six to 18 months) and the
very idea of providing for such a period is to give time and opportunity to the parties to reflect
and give a second thought to their move. It is a cooling off period. Counselling, reflection,
passage of time and good offices of friends and relatives can at times be of great help in
resolving the differences. It was with this in view that legislators have made a provision for a
time gap instead of providing for an immediate divorce on a joint application. In the case of
Sureshna Devi v Om Prakash the Supreme Court also observe that, in transitional
period(between 6 months to 18 months from the date of presentation of the petition) one of the
party may have a second thought and change his mind not to proceed with the petition.

However, in a recent judgement of Supreme Court in the case of Anil Kumar Jain v Maya
Jain12 it was held that- “Under the existing laws, the consent given by the parties at the time of
filing of the joint petition for divorce by mutual consent has to subsist till the second stage when
the petition comes up for orders and a decree for divorce is finally passed and it is only the
Supreme Court, which, in exercise of its extraordinary powers under Article 142 of the
Constitution, can pass orders to do complete justice to the parties.” The Supreme Court however
clearly expressed that only use the power under Article 142 only in special circumstances, in
normal circumstances the provisions of the statute have to be given effect to.

12
A.I.R (2010) SC 2007.
CHAPTER III. DIFFERENT BETWEEN ALL THE THEORIES OF
DIVORCE

In modern Hindu law, all the three theories of divorce are recognized & divorce can be obtained
on the basis of any one of them. The Hindu Marriage Act, 1955 originally, based divorce on the
fault theory, and enshrined nine fault grounds in Section 13(1) on which either the husband or
wife could sue for divorce, and two fault grounds in Section 13(2) on which wife alone could
seek the divorce.

In 1964, by an amendment, certain clauses of Section 13(1) were amended in the form of Section
13(1A), thus recognizing two grounds of the breakdown of the marriage. The 1976 amendment
Act inserted two additional fault grounds of divorce for wife & a new section 13B for divorce by
mutual consent.

DIVORCE BY GUILT THEORY

The guilt or offence theory of divorce is essentially a 19th century concept where the society
abhorred divorce as an evil, as devil‘s mischief, and therefore that society could agree for
divorce only on that basis that one of the parties has committed some sin, some very heinous
offence against marriage. As a corollary to the guilt of one party, the other party was required to
be totally innocent.13

According to this theory, if a party commits a matrimonial offence the aggrieved party may seek
divorce form the delinquent spouse. Traditionally, adultery, desertion and cruelty are considered
as matrimonial offences. But this should be treated only as an illustrative list. Rapes, sodomy,
bestiality, refusal to obey the order of a court to pay maintenance to the wife, marring an
underage person, are also examples of matrimonial offences. If the respondent is not guilty of
any of these offences, divorce cannot be granted against him even if he has committed the
offence of murder, dacoity, cheating, theft, treason, smuggling, black marketing or bribery etc.
hence what matters for divorce is the person injury to the marital relations of the other spouse
and not the injury dine to any other person(s) in the society. A fault divorce is usually chosen by

13
Paras Diwan, “Modern Hindu Law” (3rd ed.), p.61-75.
a spouse who wishes to be vindicated by proving the other's fault. In some states, the spouse who
proves the other's fault may receive a greater share of the marital property or more alimony.14

The offence theory stipulates for two things: (i) a guilty party, i.e., the party who has committed
one of the specified matrimonial offences, and (ii) an innocent party, who has been outraged and
who has played no role in the criminality or the matrimonial offence of the other party. If the
purpose of the divorce law was the punishment of the guilty party, then it was natural to lay
down that the other party should have no complicity in the guilt of the offending party. If the
petitioner‘s hands are not clean, he cannot seek relief.15

But by the concept of Mutual Consent theory both the parties must have filled joint petition and
agree to get a divorce. There is no concept of one party to be guilty and other party to be of clean
hand. Both the spouses in mutually consented to seek the decree of divorce and live their lives
separately. They must know that the marriage is not working anymore and it is better for both of
them to dissolve the marriage. Therefore in short in divorce by mutual consent both the spouses
actively wanted to dissolve the marriage and in divorce by guilt/ fault/ offence theory one spouse
(innocent) wanted to seek divorce because of the offence (matrimonial) done by other spouse and
the other spouse (at guilt) does not.

14
Ramesh Chandra Nagpal, “Modern Hindu Law” Eastern Book co
15
Connivance, acquiescence in the misconduct of respondent, condonation and collusion (collusion was made a
discretionary bar by the Matrimonial Causes Act, 1963) were absolute bar, while petitioner‘s own adultery,
unreasonable delay, conduct conducing to respondent‘s guilt were discretionary bars under English Law before the
coming into force of the Divorce Reform Act, 1969: see the Matrimonial Causes Act, 1950, section 4, and the
Matrimonial Causes Act, 1965, section 5. These bars were done away with by the Divorce Reform Act, 1969: see
sub-sections (1) and (2) of section 2. See also section 5 of the Act of 1973 under which, inter alia, on account of
grave hardship to the respondent the petition of divorce may not be granted. See also section 23 of Hindu
Marriage Act, 1955.
IRRETRIEVAL BREAKDOWN THEORY

Irrespective of the three remedies available to parties that is: restitution of conjugal rights,
judicial separation, and divorce, the judiciary in India is demanding irretrievable breakdown of
marriage as a special ground for divorce, as sometimes courts face some difficulties in granting
the decree of divorce due to some of the technical loopholes in the existing theories of divorce.

Both the Supreme Court and Law Committee consider the implementation of such a theory as a
boon to parties who for one or the other reasons are unable to seek the decree of divorce.
Therefore in the opinion of the Supreme Court and Law Commission of India, it is very essential
to make it a special and separate ground mission that introduction of irretrievable breakdown of
marriage, as a special ground will do any public good.

The Irretrievable breakdown theory of divorce is the third and the most controversial theory in
legal jurisprudence, based on the principle that marriage is a union of two persons based on love
affection and respect for each other. If any of these is hampered due to any reason and if the
matrimonial relation between the spouses reaches to such an extent from where it becomes
completely irreparable, that is a point where neither of the spouses can live peacefully with each
other and acquire the benefits of a matrimonial relations, than it is better to dissolve the marriage
as now there is no point of stretching such a dead relationship, which exist only in name and not
in reality.16

The breakdown of the relationship is presumed de facto. The fact that parties to marriage are
living separately for reasonably longer period of time (say two or three years), with any
reasonable cause (like cruelty, adultery, desertion) or even without any reasonable cause (which
shows the unwillingness of the parties or even of one of the party to live together) and all their
attempts to reunite failed, it will be presumed by law that relationship is dead now.

Recently the Supreme Court Naveen Kohli v. Neelu Kohli17 has recommended an amendment to
the Hindu Marriage Act, whereby either spouse can cite irretrievable breakdown of marriage as a
reason to seek the divorce. Expressing the concern that divorce could not be granted in a number
of cases where marriages were virtually dead due to the absence of the provision of irretrievable

16
Articles on legal issues [ISSN: 2349-9796]
17
AIR 1963 Mys 118.
breakdown, the court strongly advocated incorporating this concept in the law in view of the
change of circumstances.

The Court observed that public interest demands that the married status should, as far as
possible, as long as possible and whenever possible, be maintained. However, where a marriage
has been wrecked beyond any hope of being repaired, the public interest requires the recognition
of the fact. The judgment notes that there is no acceptable way in which a spouse can be
compelled to resume life with the consort and that situations causing misery should not be
allowed to continue indefinitely as the law has a responsibility to adequately respond to the
needs of the society. The profound reasoning is that in situations when there is absolutely no
chance to live again jointly or when it is beyond repair, in such a case it would be futile to keep
the marital tie alive. Here the ground of irretrievable breakdown is really needed. But it should
not be oblivious that the ground, when introduced, needs to provide safeguards to ensure that no
party is exploited.
CONCLUSION

This paper, analyzes Section 13-B of the Hindu Marriages Act. Divorce by mutual consent
provides an opportunity of amicable resolution of disputes between parties and saves time and
money. The requirements as provided under this section are that before filing a joint petition for
divorce parties must be living separately for a period of at least one year. As already mentioned,
earlier living separately does not necessarily connote physical separation, what is essential is that
parties are not fulfilling marital obligations and not living as husband and wife. The second
requirement is that the parties have not been able to live together. The fact that both the parties
have filed a joint petition by mutual consent is indicative of the face that parties have not been
able to live together. Only thing that is important is that the consent has been obtained freely and
not by way of force, fraud or undue influence as the whole purpose of mutual consent will be
vitiated if consent is not free.

After parties have filed a joint petition for divorce fulfilling all the requisite conditions they are
given a time period of six months and not more than eighteen months after which they have to
file a second motion and courts after hearing the parties and scrutinizing the averments in the
petition pass a decree of divorce. The three points of contention are that whether the waiting
period of six months is mandatory or directory, the second is that can parties unilaterally
withdraw their consent and third that whether silence at the second stage would amount to
tantamount to withdrawal. There have been contrasting judgements on the first two issues.
Different high courts have adopted different yardsticks in the interpretation of the Section 13-B.
Some High Courts have held that the waiting period of six months is mandatory as per the
section whereas some High Courts have adopted the spirit of law more than the technical words
of the section and have ruled out that the period is directory if there is no chance of reconciliation
between the parties. However, Supreme Court using its extraordinary powers under Article 142
of Constitution can pass the decree of divorce without waiting for a period of 6 months. Also,
Supreme Court in the case of Sushreta Devi has ruled out that the petition of divorce can be
withdrawn unilaterally. On the third issue the courts have ruled out that silence or not appearing
for hearings will not amount to withdrawal of consent.
.