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WHITE BLACK LEGAL: THE LAW JOURNAL

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DIVORCE BY MUTUAL CONSENT UNDER HINDU LAW: AN

ANALYSIS
Ms. Supreet Kaur
(Research Scholar, Department of Laws, Guru Nanak Dev University, Amritsar)

ABSTRACT
Marriage is the corner stone of every society. It is a voluntary union of a man and a woman
for life and for the establishment of a family. Marriage is an important aspect of every society
and every religion has its own personal laws dealing with marriage and other related matters.
Marriage is one of the essential Samskars of Hinduism and a sacrament union. Thus, under
the ancient Hindu law, neither a male nor a female was allowed to go for divorce. Though
ancient texts reveal that a man was allowed to leave his wife under certain circumstances, but
a woman was bound to live with her husband for her entire life. It was only after
industrialization that the nature of a Hindu marriage became a semblance of sacrament and
contract, making it possible for the parties to dissolve their marriage by of divorce. The
concept of divorce was introduced in the codified Hindu law in order to protect the right to
equality provided under the Constitution of India. The Hindu Marriage Act, 1955 provides
for right to divorce to both the husband as well as the wife. The said Act also makes
provision for amicable settlement by way of divorce by mutual consent which was added by
way of amendment in 1976 under Section 13B. The Indian Judiciary has from time to time
interpreted this section to make it clear, easy and time saving mode of dissolution of
marriage. In the present chapter the author makes an attempt to explain the basic idea behind
the introduction of this section and interpretations given to its ingredients by the judiciary
from time to time, with special mention to the condition of living separately and the waiver
off the cooling off period.
Key words: Marriage, Divorce, Mutual Consent, Living Separately and Waiting period.

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INTRODUCTION
The human beings lived a nomadic life in the primitive society. Any male was allowed to
have sexual relation with any female without any restriction. But with the passage of time the
concept of ownership and possession came into picture and there was a shift in the way of life
and development of cultural boundaries. Man and woman started realizing the importance of
living with stability, responsibility and unity. With the need of companionship there came the
idea of social security, behavior and marriage to live a society with social norms and values. 1
Hindus believe that marriages are made in heaven and it is one the Samskars of Hinduism and
the second stage of the life of a Hindu. 2 The Smritis and the Vedas provide the first ever
recorded evidence of marriage in India. 3

NATURE OF HINDU MARRIAGE

The Rig Vedas have mentioned a Hindu marriage as a sacramental union due to its holy or
religious character, permanent union and eternal union. It has a holy or religious character as
a Hindu is under an obligation to marry and to have a son for the performance of religious
and spiritual rites. It is a permanent union as marriage tie cannot be broken, thus, the
dissolution of marriage was not possible earlier. Marriage tie once tied will be valid for the
coming lives too and even after death, making it an eternal union.
With the advent of Industrial Revolution, the Hindu Marriage Act, 1955 was introduced to
give equal rights to men and women in personal matters under the Constitutional ideas of
liberty and equality. Certain features of the Indian Contract Act, 1872 were incorporated in a
Hindu marriage. Firstly, the condition of majority and sound mind of the parties was
mentioned under Section 5 of the Hindu Marriage Act, 1955. Secondly, it is no more a
permanent and eternal union as dissolution of marriage and remarriage has been allowed by
Sections 13 and 13B, of the Hindu Marriage Act, 1955. Thirdly, during ancient times the
consent of the parties to the marriage did not matter but now their consent is required. So at
present a Hindu Marriage has the semblance of both a contract as well as a sacrament.

1
Aakriti Vikas, “Evolution and History of Hindu Marriage” (2020), available at:
https://www.legalbites.in/evolution-history-of-hindu-
marriage/#:~:text=The%20concept%20of%20marriage%20was,only%20devoted%20to%20each%20other. (last
visited on November 23, 2020)
2
Mayuri Ghosh, “The Evolution of Hindu Marriage Trends through Indian History”, available at:
https://www.theweddingbrigade.com/blog/evolution-hindu-marriage-trends-indian-history/ (last visited on
November 23, 2020)
3
Supra note 1.

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DISSOLUTION OF MARRIAGE
As discussed above, the dissolution of marriage was not possible in ancient times due to pure
sacramental nature of marriage. It was for the first time introduced in the Hindu Marriage
Act, 1955. The Hindu law provides for four theories of divorce namely, the Fault or Guilt
theory of divorce,4 Irretrievable Breakdown theory of divorce, 5 Consent theory of divorce6
and the Customary form of divorce. 7
The Fault Theory of divorce is provided under Section 13 of the Hindu Marriage Act, 1955.
Section 13(1) provides eight grounds if divorce which are available to both the husband and
the wife. 8 The theory is based on the wrong committed by either party to the marriage. The
right to file a petition for divorce is available in case of any marriage solemnized either
before or after the commencement of the Hindu Marriage Act, 1955.9 Section 13(2) provides
special grounds of divorce i.e. pre-Act polygamous marriage of the husband;10 husband is
guilty of rape, bestiality or sodomy, 11 decree of maintenance and separation12 and option of
puberty,13 which is available only to a wife against the husband.
Irretrievable Breakdown Theory provided under Section 13(1A) was added by the Marriage
Laws (Amendment) Act, 1964 and the section was again amended in 1976. This provision is
also applicable to any marriage solemnized either before or after the commencement of the
Hindu Marriage Act, 1955. Either party can approach the Court for a decree of divorce in
case of failure of resumption of cohabitation or conjugal rights between the parties for a
period of one year or more after the passing of the decree of judicial separation 14 or
restitution of conjugal rights,15 respectively.
Though divorce was not a generally acceptable norm in Hindus, but certain form of
customary divorce was followed during the ancient times. Such customs have been saved by
the Hindu Marriage Act, 1955 under Section 29(2) provided they are not contrary to public
policy. 16

4
The Hindu Marriage Act, 1955 (Act 25 of 1955), s. 13(1), 13(2).
5
Id., s. 13(1A).
6
Id..,s. 13B.
7
Id., s. 29.
8
Id.,s.13(1).
9
Dr. Supinder Kaur, Family Law (A Text Book on Personal Laws of Hindus and Muslims) 121 (Shree Ram Law
House, Chandigarh, 1st edn., 2018).
10
Supra note 4, s.13(2) (i).
11
Id., s. 13(2) (ii).
12
Id., s. 13(2) (iii).
13
Id., s. 13(2) (iv).
14
Id., s. 10.
15
Id., s. 9.
16
Vikas Chaudhary, “Analysis of Grounds of Divorce under the Hindu Marriage Act, 1955” (2020), available
at: https://www.latestlaws.com/articles/analysis-of-grounds-of-divorce-under-the-hindu-marriage-act-
1955/#_ftn21 (last visited on November 24, 2020).

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DIVORCE BY MUTUAL CONSENT

Divorce by mutual consent was added in the Hindu Marriage Act, 1955 by the Amendment of
1976 under Section 13B. Section 13-B of The Hindu Marriage Act, 1955 is akin to Section 28
of the Special Marriage Act, 1954 and Section 10-A of The Indian Divorce Act, 1869. This is
one of its own kinds of amicable form of divorce where parties can mutually agree to file a
petition for divorce. Under this form of divorce the parties to the marriage file a petition in
the court of law that they have been unable to live together and have been living separately
for one year or more.17

OBJECTIVE OF SECTION 13B:

The Section was added with the objective of amicable and peaceful dissolution of marriage
without resorting to the fault grounds. Thus, if parties to their do not have compatibility in
their wedlock and are unable to live together. The section is wide enough to allow both the
parties to decide the terms of divorce mutually. 18

INGREDIENTS OF SECTION 13B:

There are three basic conditions for divorce by mutual consent under Section 13B, namely;
the parties must be living separately for a period of one year or more, they have not been able
to live together and they have mutually agreed to dissolve their marriage. The ingredients
have been discussed in detail as follows:

1. Living separately: The parties to the marriage must be living separately for atleast one
year before the filing of the petition for divorce. This period of one year or more must be
immediately preceding the date of filing of the petition. 19 In Sureshta Devi v. Om Prakash,20
it was held by the Supreme Court that the expression ‘living separately’ has no reference to
the place of living. It does not necessarily mean physically living at different places. The
parties may be living in the same house and under the same roof, yet they may not be living
as husband and wife and with no desire to perform marital obligations.

17
Richa Arya, “What are the grounds for dissolution of a marriage?” (2014), available at:
https://blog.ipleaders.in/what-are-the-grounds-for-dissolution-of-a-
marriage/#:~:text=Spouses%20can%20file%20for%20dissolution,of%20The%20Indian%20Divorce%20Act186
9. (last visited on November 24, 2020).
18
Supra note 9 at 175.
19
Subodh Asthana, “Divorce by Mutual Consent under Hindu Law” (2020), available at:
https://blog.ipleaders.in/mutual-consent-divorce/ (last visited on December 03, 2020).
20
AIR 1992 SC 1904.

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2. Have not been able to live together: After establishing that that the parties were living
separately for a period of one year or more, the second point to be established is that the
parties have not been able to live together. 21 In Sureshta Devi v. Om Prakash,22 it has been
observed by the Supreme Court that expression “have not been able to live together” seems to
indicate that the marriage has broken down to such an extent that there is no possibility of
reconciliation between the parties. There is no need to establish the fact that they have not
been able to live together. Mere filing of the petition of divorce by mutual consent is enough
to indicate the fact that they have not been able to live together.

3. Parties must mutually agree to dissolve the marriage: The third ingredient is that the
parties have agreed mutually to dissolve the marriage amicably under Section 13B of the
Hindu Marriage Act, 1955. Such an agreement must be free and not obtained by any force,
fraud or undue influence.23

PROCEDURE FOR DIVORCE BY MUTUAL CONSENT:

Once the essential requirements are fulfilled, the following is the procedure followed for
getting a decree of divorce under Section 13, the Hindu Marriage Act, 1955:
1. Filing of joint petition: Firstly, the parties seeking divorce has to file a joint petition for
the dissolution of their marriage. 24 The petition must be in the form of an affidavit and signed
by both the parties. 25 The duly signed petition must be presented in the District Court within
the jurisdiction26 of which the parties ordinarily reside or the marriage was solemnized. 27 The
personal presence of the parties is not an essential requirement. Thus, petition may be filed by
any family member in case of non- availability of any such party.28

2. First Joint motion: After filing the petition, the parties are required to appear before the
court for the recording of give their statements. If the court is satisfied and the statements
have been recorded, then the first motion is said to have been passed, following which a
waiting period of six months known as the cooling off period is given to the parties before
21
“Divorce by Mutual Consent” (2015), available at: https://www.lawctopus.com/academike/divorce-by-
mutual-consent/#:~:text=Divorce%20by%20mutual%20consent%20is,the%20end%20of%20the%20marriage.
(last visited on December 03, 2020).
22
Supra note 20.
23
Sureshta Devi v. Om Prakash, AIR 1992 SC 1904.
24
Diva Rai, “Divorce by Mutual Consent” (2019), available at: https://blog.ipleaders.in/divorce-by-mutual-
consent-2/ (last visited on December 04, 2020).
25
Supra note 19.
26
Supra note 4, s.19.
27
Supra note 19.
28
Supra note 24.

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they are able to file the second motion. 29 The Court will fix a date for pleading after a period
of six months from the date of joint petition and not later than eighteen months. 30

3. Second Joint Motion: On the date fixed by the Court, i.e. the final hearing, the statements
of the parties are recorded again. 31 On being satisfied of the truth of the facts and statements
mentioned in the petition,32 and after the mutual settlement of the issues relating to alimony
and the custody of children, if any, the Court passes the decree of divorce. 33 Then
the marriage stands finally ended by now and the divorce by mutual consent is granted. 34

PURPOSE OF WAITING PERIOD:

The waiting period is provided so that the parties may introspect and give a second thought to
their decision of dissolution of marriage. 35 During the cooling off period, if any of the parties
doesn’t take any action on the given date or takes back the case then the petition shall stand
cancelled.36 The Court in M. Krishna Preetha v. Dr. Jayan Moorkkanatt,37 observed that the
idea behind the waiting period provided under Section 13B is the giving of liberty and option
of withdraw of consent to the parties. The held that by no stretch of imagination can the
waiting period held to be unnecessary or prejudicial.

WAIVER OF THE WAITING PERIOD:

There has been a conflicting view of the courts regarding the waiver of the waiting period of
six months. In the case of Grandhi Venkata Chitti Abbai v. Unknown,38 and Dinesh Kumar
Shukla v. Neeta,39 it was held that the waiting period of six months is mandatory otherwise it
will hit an important aspect of the Section 13B(2) of the Hindu Marriage Act,1955. However,
using its discretion the Court can reduce this period. The Family Court, Hyderabad gave
another view in Hitesh Narendra Doshi v. Jesal Hitesh Joshi,40 that the provision of six
months was added in Section 13B of the Hindu Marriage Act, 1955 with the specific purpose
that during this period the parties can give time to each other, introspect, think about their

29
Supra note 19.
30
Supra note 24.
31
Supra note 19.
32
Supra note 24.
33
Supra note 19.
34
Ibid.
35
Ibid.
36
Supra note 24.
37
AIR 2010 Ker 157.
38
AIR 1999 AP 91.
39
AIR 2005 MP 106.
40
2000 (3) ALD 81.

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decision once again and reconcile, if possible. The Supreme Court, held a different opinion
in Arvind Sharma v. Dharna Sharma,41 and stated that though Section 13B is framed in
‘mandatory’ phraseology but it is actually ‘directory’ in nature. It was observed that the
Legislature never intended the strict compilation of the period of six months. In fact, this
section was formulated to help two frustrated partners in easy and quick separation and lead
their life peacefully. If Section 13-B (2) be read as mandatory, the very purpose introduction
of divorce by mutual consent will be frustrated.
The Supreme Court in Anil Kumar Jain v. Maya Jain,42 held that the waiting period is
mandatory in nature and cannot be dispensed with. In the case of Amardeep Singh v. Harveen
Kaur,43 the Hon’ble Supreme Court observed that where there is no possibility of
reconciliation, the waiting period will only merely prolong the misery and sufferings of the
parties. The Court held that the cooling off period of six months, as provided in Section 13B
(2) is not a necessary condition but merely an instruction, and the keeping in view the facts
and circumstances of the case, the Court may exercise its discretion in waiving off the
waiting period. The Court held that the waiting period of six months can be waived off if the
Court is satisfied that the parties to the marriage have lived separately for at least one year
and have mutually settled the issues of alimony and custody of children, if any.
A division Bench of the Supreme Court constituted by Justice Kurian Joseph and Justice S.K.
Paul allowed the couple to dissolve their marriage without waiting for the cooling off period.
The Court found and was convinced that both the parties were well educated and took their
decision consciously and has entered into amicable settlement. The Court also quashed the
criminal proceedings between the parties pending in the Gujarat Court. The Court also held
that the parties to the marriage can file an application for the waiver of the waiting period
within one week of their first joint motion. 44

COMPETENT COURTS FOR THE WAIVER OF THE WAITING

PERIOD:
Article 142 of the Constitution of India confers power only on the Supreme Court to waive
off the period prescribed under Section 13B (2) of the Hindu Marriage Act, 1955. But there
have been situations where even the lower Courts have waived off the statutory period
prescribed in Section 13B (2). The lower Courts can do so when there is grave injustice to the

41
(1998) 1 SCC 22.
42
AIR 2010 SC 229.
43
Civil Appeal No. 11158 OF 2017.
44
“SC allows couple to separate without waiting for six-month mandatory ‘cooling off’ period” The Hindu,
October 16, 2020, available at: https://www.thehindu.com/news/national/sc-sanctions-divorce-to-couple-
without-six-months-cooling-off-period/article25237873.ece (last visited on December 06, 2020).

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parties and to prevent any sort of unnecessary struggles and agony due to prolonged
litigation.45
Quashing the verdict of Family Court denying the waiver of the waiting period, the Delhi
High Court waived off the requirement of the cooling off period as mentioned in Section
13B(2) of the Hindu Marriage Act, 1955 after the estranged wife expressed her intention of
marrying a non-resident who was in India for a few days only. 46
In a plea filed by a couple in the Punjab and Haryana High Court, Justice Sanjay Kumar
waived the compulsory six-month cooling off period after finding that there was no
possibility of reconciliation between the couple and they took a firm decision to resolve their
marriage get divorced. The Court stated that such a waiver can be considered if:
(i) the statutory waiting period of six months and the period of separation of one year is
already over before the first motion itself;
(ii) there is failure of all the efforts for mediation or conciliation between the parties;
(iii) the parties have genuinely and mutually settled their matters like, alimony, child custody
or other pending issues; and
(iv) the waiting period will only prolong their agony and suffering. 47
On 26th October, 2020, the Bombay High Court waived the six month waiting period on the
joint plea of the parties to the marriage. Taking into consideration the fact that the two were
estranged for over two years and the wife was pregnant from another man whom she intends
to marry, the Court ordered the Bandra Family Court to dispose of the Couple’s divorce
petition as expeditiously as possible. 48

UNILATERAL WITHDRAWAL OF CONSENT:

Though the phrase “Divorce by Mutual Consent” is self-explanatory, i.e. the consent of both
parties is an essential requirement in order for the court to grant the decree of divorce. 49 But
there have been conflicting judgments concerning on the issue of the status of the divorce

45
Subodh Asthana, “Waiting Period in Mutual Consent Divorce” (2019), available at:
https://blog.ipleaders.in/waiting-period-mutual-consent-divorce/ (last visited on December 06, 2020).
46
“Diovrce by Mutual Consent: HC waives cooling-off period” The Hindu, May 09, 2020, available at:
https://www.thehindu.com/news/national/divorce-by-mutual-consent-hc-waives-cooling-off-
period/article27084494.ece (last visited on December 06, 2020).
47
Ajay Sura, “Cooling off period before divorce can be waived off: HC” The Times of India, September 09,
2020, available at: https://timesofindia.indiatimes.com/city/chandigarh/hc-rules-cooling-off-period-before-
divorce-can-be-waived-if-no-possibility-of-reconciliation/articleshow/78005154.cms (last visited on December
06, 2020).
48
Swati Deshpande, “Bombay High Court waives 6-month wait in joint divorce plea for woman pregnant after
separation” The Times of India, October 31, 2020, available at:
https://timesofindia.indiatimes.com/city/mumbai/bombay-high-court-waives-6-month-wait-in-joint-divorce-
plea-for-woman-pregnant-after-separation/articleshow/78970312.cms (last visited on December 06, 2020).
49
Supra note 19.

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petition under Section 13B of the Hindu Marriage Act, on unilateral withdrawal of consent by
one of the parties. 50 In Jayashree Ramesh Londhe v Ramesh Bhikaji,51 the Bombay High
Court held that once a joint petition for divorce by mutual consent is filed, a party can
withdraw from it only with the consent of the other party. In Nachhattar Singh v Harcharan
Kaur,52 it was held that if both the parties voluntarily gave consent to file the petition under
Section 13B of the Hindu Marriage Act, 1955, it will not be open to one party to withdraw
the consent.
The situation was set at rest by the Apex Court in Sureshta devi v Om Prakash, 53 in which the
Court held that petition of divorce by mutual consent can be withdrawn unilaterally. In this
case the husband fraudulently obtained the consent of the wife for filing the divorce and
therefore, she revoked her consent unilaterally. . Thus, if one of the parties withdraws its
consent, the Court is barred from passing a decree of divorce by mutual consent. The Court
held that mutuality of consent is sine qua non for passing a decree for divorce under Section
13-B, therefore, mutual consent should continue till the divorce decree is passed.
In judgement of Anil Kumar Jain v Maya Jain,54 the Supreme Court held that the consent of
the parties at the time of filing of the joint petition for divorce by mutual consent shall subsist
till passing of the decree for divorce.
After passing of the first motion the parties are required to agree on the issues of alimony,
custody of children and other marital expenses. Now, if one of the parties unilaterally
withdraws his/her consent, it will cause an irreversible prejudice to the other party. The
Delhi High Court in the case stated that the agreement between the parties to settle their
issues and go for divorce by mutual consent is binding in nature and a form of undertaking.
Withdrawal of consent by either party would be breach of their undertaking made before the
Court of law, and will be considered as a civil contempt. The unilateral withdrawal of consent
is allowed only on reasonable grounds and without causing as prejudice to the other party.
Therefore, if the consent has to be withdrawn unilaterally, it must be done so on a just and
reasonable ground and the other party must not suffer prejudice. 55

50
Supra note 21.
51
AIR 1984 Bom 302.
52
AIR 1996 P&H 201.
53
Supra note 20.
54
Supra note 42.
55
Supra note 19.

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CONCLUSION:
Section 13B of the Hindu Marriage Act, 1955 provides an opportunity to the estranged
couples to amicably settle their disputes and go for divorce by mutual consent which is time
and cost saving. This consent of the parties must be there during the entire proceedings and
as held in the Judgment of the Supreme Court in Sureshta devi v. Om Prakash, 56 made it
clear that a party whose consent was not a free consent can unilaterally withdraw her/her
consent. The filing of the joint petition by the parties is ample evidence to indicate that the
parties have been living separately for a period of one year or more, they have not been able
to live together and have mutually agreed to dissolve their marriage. After filing of the joint
petition, the parties have to wait for a period of at least six months and not more than
eighteen months from the date of filing of the joint petition. Such period which is known as
waiting period or cooling off period can be waived off by the Supreme Court under Article
142 of the Constitution of India and by the lower courts under exceptional circumstances.
Divorce by mutual consent is the best way for the parties who do not want to enter into
unnecessary litigation and have mutually agreed to dissolve their marriage peacefully after
settling all the issues related to marriage.

56
Supra note 20.

14