Divorce by Mutual Consent (No Fault theory of Divorce) - Section 13-B

BY- SHIVANI SHUKLA

Under Section 13-B of the Hindu Marriage Act, 1955, the parties can request divorce by mutual
consent by filing a plea before the court. Mutual consent is defined as both the parties agree for
calm parting. There was no provision of divorce by mutual consent under Hindu Marriage Act,
1955. Section 13-B was added by the Marriage Laws (Amendment) Act, 1976 where the parties
can at this instant acquire divorce by mutual consent. This provision is retrospective as well as
prospective. If both the parties are determined to dissolve their marriage, they may do so in a
further civilized and cultured way than by quarrelling between themselves in a court. They may
plead mutually under Section 13-B in a District court that they may be certain a decree of
divorce. The court can agree to the parties to amend a petition for divorce under Section 13-B to
be transformed into a plea for divorce by mutual consent. This is achievable at the appellate
period.
Divorce by Mutual Consent has materialized as one of the most wanted after modes of getting
divorce in the recent times. Section 13B of the Hindu Marriage Act, 1955 spells out the law
leading to divorce by mutual consent. One of the vital fundamental ingredients to attain divorce
through mutual consent is that both the parties i.e. husband and wife commonly give their
consent to acquire divorce.

Essential Ingredients of Section 13B of the Act:-

 A divorce plea is offered together by the parties before the District Court.
 The provision applies to marriages formalized before or after the commencement of
the Marriage Laws (Amendment) Act, 1976.
  The parties to the wedding should have been living independently for a period of one
year or more.
 The parties should persuade the Court that they have not been able to live together and
that they have mutually agreed that the marriage should be dissolved.
 Period of Interregnum- The appeal should not have been withdrawn in six months
after the date of the appearance of the appeal and not later than eighteen months after
the said date.

Mutual Consent Divorce is a straightforward way of coming out of the matrimony and
dissolving it legally. Imperative obligation is the mutual consent of the husband & wife. There
are two characteristics on which Husband & Wife have to achieve to consensus. One is the
alimony or maintenance issues. As per Law there is no minimum or maximum perimeter of
upholding. It may perhaps be whichever figure or no figure. Subsequently vital consideration is
the Child Custody. This can furthermore be worked out successfully between the parties. Child
Custody in Mutual Consent Divorce can be collective or mutual or restricted depending upon
the approving of the spouses.

Why is period of Interregnum given?

The High Court of Rajasthan answered this issue in the case of Suman v. Surendra Kumar to
the outcome that period of interregnum which is proposed to give time and opportunity to the
parties to reflect on their move. In this transitional phase the parties or either of them may have
second thoughts.

Procedure of Mutual Divorce

Mutual Divorce is to be filed by the couple only subsequent to they have lived separately for at
least a year. The husband and the wife should in cooperation state to the court that they are
unable to live jointly as they are facing enormous difficulties in adjustment.
The filing of divorce appeal by both the husband and the wife is legally known as the "The First
Motion Petition for Mutual Consent Divorce". "The Second Motion Petition for Mutual Consent
Divorce" mentioned in the sub-section (2) of Section 13 B is filed when the couple comes back
to the court for the second time after a period of six months. If the judge is contented after a
hearing from both the husband and wife, the court pronounces a mutual divorce decree.
If the couple fails to emerge in the court after six months and not later than eighteen months from
the date of first motion, the divorce petition becomes null and void. Either of the couple can
withdraw his/her petition within the six months term.
A judgment for mutual divorce is passed out only if all the obligatory agreements requisite for a
mutual divorce in India are firmly maintained. The husband and the wife should come to terms
of settlement concerning the subsequent issues.
Custody of Child
Return of Dowry Articles / Istridhan of Wife
Lump Sum Maintenance Amount of Wife
Litigation Expenses
What does the expression “living separately” mean?

In the case of Sureshta Devi v. Om Prakash, the Supreme Court opined that the phrase ‘living
separately’ connotes not living like husband and wife. It has no indication to the place of living.
The parties may live under the same roof and yet they may not be living as husband and wife.
The parties should have no craving to perform marital obligations

Can a Party walk back from Undertaking for Divorce given under Section 13B (1) of
Hindu Marriage Act?  

In the case of Shikha Bhatia vs. Gaurav Bhatia & Ors and Avneesh Sood vs. Tithi Sood, the
Courts had speak out that a partner, who gives a responsibility to the court to stand by the
approval given in the First motion for dissolution of marriage under Section 13B (1) of the
Act and for moving a Second motion petition, cannot be allowed to walk back from such a
commission on the origin of an agreement arrived at between the parties and any endeavor to
pace back would amount to infringement of the responsibility accepted by the court and
therefore, magnetize contempt proceedings.

In another case Rajiv Chhikara vs. Sandhya Mathu, the Division Bench of Delhi High Court
discoursed that walking back from an arrangement amounts to mental cruelty. The Court in the
case observed that the parties had been living separately since 2009 and their connection was
away from restore. Consequently in such situation one spouse insists of preserving the
matrimonial bond followed by the same would be like putting the partner under severe situation
of mental cruelty.

Whether it is open to one of the spouses at any time till decree of divorce is passed, to

withdraw the consent?

In the case of, Smt. Sureshta Devi vs Om Prakash  the question arose before the Supreme Court
was as to whether was release to one of the spouses at any time till a decree of divorce is passed,
to withdraw the consent given to the petition filed under Section 13B of the Act?

The Supreme Court noticed the deviating outlooks expressed by different High Courts. The
Bombay High Court, Delhi High Court and Madhya Pradesh High Court took a view that the
decisive time for the assent for divorce under Section 13B of the Act was when the first petition
was filed and if the approval was given willingly, it was not promising for any party to withdraw
the said consent.

On the other hand, the Kerala High Court, Punjab and Haryana High Court and Rajasthan High
Court held that it is open to one of the spouses to pull out the consent given to the petition at any
time previous to the court passes a decree of divorce.

The judgment in the case of Sureshta Devi case was sanctioned by a three Judge Bench of the
Supreme Court in the Smruti Pahariya case, in which the Apex Court stated that it is merely on
the persistent mutual consent of the parties that a decree for divorce under Section 13-B of the
said Act can be passed by the court. If appeal for divorce is not officially withdrawn and is kept
awaiting then on the date when the court awards the decree, the court has a legal obligation to
hear the parties to establish their assent. The court has to be contented about the continuation of
mutual consent between the parties on some substantial materials which evidently reveal such
consent.

FREQUENTLY ASKED QUESTIONS

1. When can the divorce by mutual consent be filed?

 The parties intending to dissolve marriage are required to wait for at least one year from
the date of marriage.

2. Where to file the divorce petition?

In the family court of the city / district where both the partners lived together for the last
time, this was their matrimonial home.

3. Are there different laws of divorce for different religion in India?

There are different laws of divorce for different religion. Hindus are governed by Hindu
Marriage Act, 1955. Christians are governed by Indian Divorce Act-1869 & The Indian
Christian Marriage Act, 1872. Muslims are governed by Personnel laws of Divorce and also
the Dissolution of Marriage Act, 1939 & The Muslim Women (Protection of Rights on
Divorce) Act, 1986. Similarly, Parsis are governed by The Parsi Marriage & Divorce Act-
1936. And there is also a secular law called Special Marriage Act, 1954.

4. How to file divorce petition by mutual consent? What happens in the court?

The divorce petition is in the form of affidavit, which is to be submitted to the family court.

5. Can any one party withdraw the mutual consent petition after filing in the court? What
will happen by that?

Throughout this period of 6 months when the petition is pending in the court, any of the partners
is fully permitted to withdraw the mutual consent by filing an application before the court stating
that he/she does not wish to seek divorce by mutual consent. In such circumstances, the court
grants no divorce decree.

6. Can the spouse consent for remarriage without getting divorce from existing partner?

Remarriage without getting divorce is a punishable offence with seven years imprisonment.

7. How much time does the whole process take from filing the mutual consent petition in
the court till the passing of the decree (judgment) by the court?

It takes from six months to one year from the date of filing of the petition. It varies from case to
case & place to place.