THE UNIVERSITY OF BURDWAN

AMEX LAW COLLEGE

Topic : WRITE A SHORT NOTE ON
DIVORCE BY MUTUAL CONSENT
Under The Supervision Of
MISS CHANDRANI
BHATTACHARYYA
SUBMITTED BY : AZIZA PARVEEN
ROLL NO: ALC/2021-03/113
SUBJECT : family law(hindu law)
Course : 3Year LLB
Semester: 1St SEM
Session : 2021-2023
Paper Code: 3.1.4
 ACKNOWLEDGEMENT

I would like to express my special thanks of gratitude to my FAMILY LAW (HINDU LAW) teacher
"MISS, CHANDRANI BHATTACHARYYA" for their able guidance and support in completing my
Project.

I would also like to extend my gratitude to the TIC SIR "IMROJ AHMED" for providing me with all
the facility that was required.

AZIZA PARVEEN

3 YEAR LL.B 1ST SEM

 CONTENT

1 INTRODUCTION 04

2. Meaning of mutual consent 05

3. Requirements Of Divorce By Mutual Consent 05

4. Hindu Marriage Act 05

5 The Special Marriage Act, 1954 06

6. Case Law 06

7. Conclusion 07
 1. 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.
2. Meaning of mutual consent
Divorce by mutual consent is addressed under S. 13 B of the Hindu Marriage Act, 1955 and
Section 28 of the Special Marriage Act, 1954. For parties to seek divorce by mutual consent,
they must be living separately for a period of atleast one year, and must resolve towards the
end of the marriage. They must not be performing marital obligations – physical separation is
not a criteria. The marriage must be beyond reconciliation, and presenting a petition for
divorce together does not indicate amicability. Consent, however, must be free. If after 6
months the petition is not withdrawn, the parties may move the court within 18 months, after
which the Court may grant the divorce.

3. Requirements of divorce by mutual consent

The requirements which have to be met to seek divorce under Hindu Marriage Act are as
follows:

1. The parties have been living separately for a period of at least one year

2. They have not been able to live together, and

3. 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.

4.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[1]. Section 13B of the Hindu Marriage Act[2],
1955 runs:

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 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.

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.

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.

5 .The special marriage Act , 1954

The divorce by mutual consent is filed under Section 28 of the Special Marriage Act, 1954 in
case of court marriage (solemnized under Special Marriage Act). This is similar to divorce by
mutual consent as provided in Section 13B of Hindu Marriage Act, 1955.

Case law-1
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.
Mutua 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.”

Case law -2
In Jayashree Ramesh Londhe v Ramesh Bhikaji, the court held that once a joint petition by
mutual consent was filed, no party could withdraw from it without the consent of both the
parties.

Case law -3
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.”

Case law -4
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.”
 6. 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.