FAMILY LAW

(Project file)

IN PARTIAL FULFILLMENT FOR THE REQUIREMENTS OF THE COURSE

BCOM LLB (hons.) on the topic of,

DIVORCE BY MUTUAL CONSENT

SUBMITTED TO- SUBMITTED BY-

DR. NANCY SHARMA CHARU LATA

UILS PU CHD ROLL NO. 204/D
 ACKNOWLEDGEMENT
In the accomplishment of this project successfully, many people
have best owned upon me their blessings and the heart pledged
support, this time I am utilizing to thank all the people who have
been concerned with this project.
Primarily I would thank god for being able to complete this
project with success. Then I would like to pay my sincere gratitude
to my teacher DR. NANCY SHARMA , University Institute of
Legal Studies, Panjab University, Chandigarh , whose guidance has
been the ones that helped me patch this project and make it full
proof success. Her suggestions and instructions have served as the
major contributor towards the completion of the project.
Then I would like to thank the entire faculty of University
Institute of Legal Studies, Panjab University, Chandigarh , for
always motivating to give the best.
Lastly I would like to thank all my classmates and my family
who helped me a lot.
Charu Lata
Roll no. 204/20
Sec D Sem 3
 CONENTS

1. Introduction
2. Divorce by mutual consent –
13b under hindu marriage act

3. Requirements of divorce by mutual consent

4. Whether the waiting period of six months is
mandatory or directory
5. Whether consent can be unilaterally withdrawn
6. Whether mere silence at the second stage would
tantamount to withdrawal
7. Conclusion
8. Bibliography
 INTRODUCTION
Marriages are considered as sacred alliance for life, it is
not just a union between two persons but between two
families. Nonetheless, 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.
Section 28 of the Special Marriage Act, 1954 which also
deals with divorce on grounds of mutual consent is pari
materia to the above section.
 HINDU MARRIAGE ACT
The ground of divorce by mutual consent was inserted in
the Hindu Marriage Act 1955 by an amendment in 1976,
by adding Section 13B. Section 13B of the Hindu
Marriage Act, 1955 runs:
• 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
solemnised before or after the commencement of the
Marriage Laws (Amendment) Act, 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.
• 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.
 REQUIREMENTS OF DIVORCE BY
MUTUAL CONSENT

The requirements which have to be met to seek divorce

under Hindu Marriage Act are as follows:
• The parties have been living separately for a period of at
least one year
• They have not been able to live together, and
• They have mutually agreed that marriage should be
resolved.

The first requirement is that the parties should be living

separately for a period of at least one year before filing
the divorce petition. It is necessary to understand what
does the term “living separately’ means.
 ➢ Living separately

• The Supreme Court of India in the case of Sureshta

Devi v Om Prakash has 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 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.
 ➢ Parties have not been able to live together

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.
In Sureshta Devi v Om Prakash, 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 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. 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.
• After satisfying the above two requirements and
filing a joint petition for divorce by mutual consent,
the parties must wait for at least six months, usually
termed as the “cooling period”. After the end of this
period, if the initial petition is not withdrawn by
either of the parties or jointly, both the parties may
move court by way of joint motion within the
stipulated period of 18 months from the initial date of
the filing of the joint petition. This period is given to
parties to re-think their decision.
The following aspects of this provision have been subject
to judicial interpretation:
➢ Whether the waiting period of six months is
mandatory or directory
There have been conflicting judgements on this regard
that whether the courts should mandatorily wait for a
period of six months as given in the sub section(2) of
Section 13B.
• In the Grandhi Venkata Chitti Abbai case, the court
observed that- “If Section 13-B (2) is read as
mandatory, the very purpose of liberalizing the policy
of decree of divorce by mutual consent will be
frustrated more so when the parties started living
separately for a considerable time. Thus s 13-B (2)
though is mandatory in form is directory in
substance.
• Likewise, in the case of Dinesh Kumar Shukla v
Neeta, it was held that the waiting period is directory
in nature and it can be brought down from 6 months
when all efforts at reconciliation failed.
• But, in the case of Hitesh Narendra Doshi v Jesal
Hitesh Joshi, it was held that “the provision has a
definite purpose and object, i.e. giving time to the
parties for introspection and reconciliation. That
purpose and object stares at us so clearly by the
 language expressed in s 13-B (2) of the Act robbing
away the right of the court from considering the
petition earlier than six months.”
• In the case of Ashok Hurra v Rupa Ashok, it was held
that “in exercise of its extraordinary powers under
Article 142 of the Constitution, the Supreme Court
can grant relief to the parties without even waiting for
the statutory period of six months stipulated in s. 13-
B of the Act. This doctrine of irretrievable break-
down of marriage is not available even to the High
Courts which do not have powers similar to those
exercised by the Supreme Court under Article 142 of
the Constitution.”
Therefore, the courts have been inclined more towards
waiving off this period if the circumstance of the case
demands so and where there is no chance of reconciliation
between the parties. Also, Supreme Court by way of its
extraordinary powers as provided under Article 142 of the
Indian Constitution can grant divorce without waiting for
6 months if it is satisfied that the marriage is irretrievably
broken down. There is still uncertainty whether High
Courts and Family Courts have to mandatorily wait for a
period of 6 months. But as it is evident from many cases
where there is no possibility of reconciliation between the
parties and the marriage has been broken down
irretrievably, the courts should follow the spirit of law
more than the formal requirements of the section.
 ➢ Whether consent can be unilaterally withdrawn
There have been contrasting judgements on this issue.
The controversy is that since under this section both
parties have to file a joint petition for divorce how can
one party unilaterally withdraw from it. Also, one of the
purposes of giving a time period of six months is to allow
parties to re-think their decision and if one of the party
decides to withdraw from it, why should it not be allowed
to do so.
• In Nachhattar Singh v Harcharan Kaur, it was held
that- “If both the parties had voluntarily consented to
file the petition for dissolving the marriage by mutual
consent and all other conditions mentioned in sub-
section (1) of section 13-B of the Act are fulfilled, it
will not be open to a party to withdraw the consent.”
• On the other hand, in Sureshta devi v Om Prakash,
the Court has held that petition of divorce can be
withdrawn unilaterally. It was held in this case that if
one of the parties withdraws its consent the Court
cannot pass a decree of divorce by mutual consent.
The Court held that “if the decree is solely based on
the initial petition it negates the whole idea of
mutuality and consent for divorce. Mutual consent to
divorce is sine qua non for passing a decree for
divorce under Section 13-B. Mutual consent should
continue till the divorce decree is passed.”
• However, in a recent judgement of Supreme Court in
the case of Anil Kumar Jain v Maya Jain 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.
 ➢ Whether mere silence at the second stage would
tantamount to withdrawal
If the parties who have filed for divorce under mutual
consent and after the end of the 6 month period what is to
be done if either of them do not turn up. Will it amount to
withdrawal of consent?
• Rajasthan High Court in the case of Suman v
Surendra Kumar has answered these issues. In this
case the husband after filing a joint consent petition
for divorce did not appear for hearings. The family
court held that no decree could be passed in the
absence of both the parties. On appeal it was held by
the court that- “When one party has himself left the
matter for inference, the inference ought to be drawn
in favour of consent rather than for absence of
consent.” It was held that silence cannot be taken to
amount to withdrawal of consent.
 Conclusion
Through this paper, we have analysed the 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 we
mentioned out earlier living separately does not
necessarily connotes 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
scrutinising 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.
 BIBLIOGRAPHY
➢ BOOK –
FAMILY LAW BY DR.PARAS DIWAAN

➢ WEBSITE –
▪ www.lawctopus.com
▪ www.legalservices.com