A mutual consent divorce proceedings initiate when both the parties to the marriage i.e. husband and wife want to terminate the marriage. They decide to get separated by mutual consent. According to the provisions of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act) both the husband and the wife have the right to dissolve their marriage by a decree of divorce on various grounds provided under Section 13 of the Act. Further, Section 28 of the Special Marriage Act, 1954 and Section 10A of the Divorce Act, 1869, provides for divorce by mutual consent.
The Christians are governed by the Indian Divorce Act, of 1869 and the Indian Christian Marriage Act, of 1872. The Muslims are governed by the Personnel laws of Divorce and also the Dissolution of Marriage Act, 1939 and the Muslim Women (Protection of Rights on Divorce) Act, and the Parsis are governed by Parsi Marriage & Divorce Act-1936. Apart from the above laws, other marriages are governed by the Special Marriage Act, of 1954.
In P. Sunder Raj v. P. Sarika Raj[i]– The Court held that a decree for divorce by mutual consent can be passed and is liable to be passed where the parties seek divorce by mutual consent as provisioned under Section 13-B of the Act and it cannot be done in any other manner.
Can the consent be withdrawn after filing for Divorce by Mutual Consent?
The Court held[ii] that the important feature of Section 13B of the Hindu Marriage Act is that the parties should mutually agree for divorce and the consent should be free. The court held that the defaulting party can be held liable for civil contempt if the terms and conditions are breached of an undertaking given to the court or made a part of a consent decree.
The Contempt of Court Act, 1971, empowers the court to entertain the petition. It further clarified that no coercive orders compelling the defaulting party to give its consent to grant a decree of mutual consent be passed, even though there is a settlement or undertaking given by the parties before any Court.
In another case, the husband acted to the wife’s prejudice by accepting the terms of compromise and he withdrew his appeal after paying half of the alimony. The court held that the wife was “stopped from withdrawing her consent now”. Recently, the Nagpur bench of the High Court of Bombay stated that the mutual consent given for divorce cannot be unilaterally withdrawn by a spouse without a sufficient and just cause[iii].
The Kerala High Court held that if the parties agree to file a joint petition under a compromise between them then in that case they are estopped from withdrawing from the agreement[iv].
In the case of Jayashree Ramesh Londhe v. Ramesh Bhikaji[v]– It was held by the court that neither party can withdraw their consent from the joint petition for divorce unless and until both parties consent to the withdrawal.
In another case of Nachhattar Singh v. Harcharan Kaur[vi]– The Court clarified that once the parties submit a petition voluntarily for divorce and all of the requirements provisioned u/s 13B(1) of the Act are met, the consent is irrevocable.
In Sureshta Devi v. Om Prakash[vii]– The Court stated that mutual consent should exist until a divorce decision is issued. The cooling-off period was given to allow the parties to change their minds. Both parties are not required to modify their minds. A single party can also do it.
Subsequently, in the case of Ashok Hurra v. Rupa Zaveri [viii]– It was held by the Court that mutual consent must be maintained until the divorce judgment is issued, even if one of the spouses does not withdraw their consent within the 18 months.
In the case of Anil Kumar Jain v. Maya Jain[ix]– The Court observed that the consent obtained by the parties when filing the petition must be maintained till the case is brought up for order and a divorce judgment is issued. It further clarified that many directions can be issued by the Supreme Court offering comprehensive justice to the party while exercising its exceptional power under Article 142 of the Constitution.
Whether by giving an undertaking before a Court to file a second motion under Section 13B(2) of the Act, 1955 at Section 13B(1) stage or by giving an undertaking to a Court to that effect in a separate court proceeding, a party waives its right to rethink/renege under 13B(2) of the Act, 1955? If yes, whether such right can be waived by a party under Section 13B(2) of the Act, 1955[x]?
An undertaking was given before a court by a party to file a Second Motion u/s 13-B(2) the parties’ right to rethink u/s 13-B(2) cannot be waived as such a waiver is proscribed by the statute providing a window period for the parties to withdraw their consent at any stage till the decree of divorce is finally granted. Hence, the right of withdrawal of consent can be exercised at any stage, and doing so cannot be treated as opposed to public policy. Once a party decides to have a second thought and on reflection, backs off, the court concerned cannot compel the defaulting party to give its consent based on an earlier settlement/undertaking[xi].
Recourse available against the party resiling after first motion and later does not come for the second motion
In Shikha Bhatia v. Gaurav Bhatia & Ors.[xii] and in Aveenash Sood v. Tithi Sood– The courts held that a partner, who undertakes to comply with the consent granted in the First motion to sever marriage under Section 13B(1) and to transfer a second motion petition, cannot be permitted to revoke such an undertaking under an arrangement.
In Rajiv Chhikara v. Sandhya Mathu[xiii]– The High Court stated that resiling from mediation is mental cruelty. In the instant matter, the court noted that the partner had lived apart since 2009 and there was no scope of conciliation. One partner demands that the marital bond be maintained and the same would be as putting the partner in an extreme mental abuse situation.
For breach of the undertaking given to the concerned court, it would take appropriate action as permissible in law to enforce compliance by the defaulting party by exercising contempt jurisdiction as contemplated under Section 2(b) of the Contempt of Court Act, 1971[xiv].
Whether any guidelines are required to be followed by the Court while recording the undertaking/agreement of the parties regarding a petition under Section 13B(1) or a motion under Section 13B(2) of the Act or both for obtaining a divorce?
In Rajat Gupta v. Rupali Gupta[xv] the general guidelines that are to be followed by the Court while recording undertaking/agreement of the parties are as under:
- If the parties amicably settle their disputes and arrive at a settlement, whether of their own accord, or with the aid and assistance of the Court or on exercising the ADR processes (mediation/conciliation/Lok Adalat), or otherwise, the settlement agreement that may be drawn up, must incorporate the following:
- Record in clear, specific, and unambiguous language, the terms/stipulations agreed upon between the parties;
- Record in clear, specific, simple, and unambiguous language, the mode, manner, mechanism, and/or method for the implementation or compliances of the terms/stipulations agreed upon between the parties;
- Record an undertaking of the parties that they will abide by and be bound by the agreed terms/stipulations of the settlement agreement;
- Stipulate a fine or penalty as may be agreed upon, in the event of a default of the agreed terms/stipulations of the settlement agreement by either side;
- Provide for the consequences of the breach of the terms/stipulations of the settlement agreement;
- Record a declaration of both the parties in unequivocal and unambiguous terms that they have agreed on every term recorded in the settlement agreement, after carefully reading over and fully understanding and appreciating the contents, scope, and effect thereof, as also the consequences of the breach thereof, including payment of the fine/penalty, if so agreed;
- The settlement agreement must state that the terms have been settled between the parties of their own free will, violation, and consent and without there being any undue pressure, coercion, influence, misrepresentation, or mistake (both of law and fact), in any form whatsoever. It should also be stated that the settlement agreement has correctly recorded the said agreed terms.
- The settlement agreement may include a term/stipulation that the parties have agreed that they would dissolve their marriage by mutual consent, which necessarily has to be by the law, as provided under Section 13B of the Act.
- The settlement agreement may include other terms/stipulations settled between the parties including payment of money, transfer of moveable/immovable properties. The said terms must be scrutinized by the Court to satisfy it that they are by the spirit of the law and are enforceable and executable.
- To avoid any ambiguity or misunderstanding on the part of either of the parties, at a later stage, a clear and unambiguous undertaking to the court must be recorded.
- The statements of the parties may be recorded by the court after putting them on oath wherein the parties affirm the terms of the settlement; they would be liable for penal consequences in case of a breach.
- The court may also direct the parties to file their respective affidavits affirming the terms and conditions of the settlement. The court may also ask the parties to formally prove not only the said affidavits but also the settlement agreement executed by them.
- The Court must apply its judicial mind to satisfy itself that the settlement arrived at between the parties is not only bonafide, equitable, and voluntary, but is enforceable in law and is not opposed to public policy.
If the withdrawal of consent for mutual divorce has not been communicated to the court by the parties then it shall consider that the consent is there and it has not been withdrawn. In Suman v. Surendra Kumar[xvi]– The husband did not appear at the second stage after filing a mutual consent divorce, as one party to the divorce had abandoned the case. It was decided by the Court that mere silence did not constitute a withdrawal of consent.
To conclude we can say that the Court must be satisfied that the parties were living separately for the statutory period. All efforts have been already made at mediation and there is no scope of reconciliation between the parties and a further waiting period will prolong their agony. The cooling-off period provisioned under Sec.13B(2) of the Hindu Marriage Act, 1955, is not mandatory but directory. It is open to the Court to exercise its discretion based on facts and circumstances of each case and accordingly divorce may be granted.
[i] AIR 2015, Punjab 83
[ii] Rajat Gupta vs. Rupali Gupta, 2018 SCC OnLine Del. 9005
[iii] https://www.hindustantimes.com/cities/mumbai-news/mutual-consent-for-divorce-can-t-be-unilaterally-withdrawn-without-sufficient-cause-hc-101644690648989.html
[iv] BENNY V MINI [Matrimonial Appeal. No.1066 OF 2017]
[v] AIR 1984 Bom. 302
[vi] AIR 1988 P&H 27
[vii] AIR1992SC1904
[viii] AIR 1997 SC 1266
[ix] [2009] INSC 1516
[x] https://www.daaman.org/jd/Rajat-Gupta-vs-Rupali-Gupta/Despite-Settlement-Agreement%2C-Courts-Cannot-Compel-Party-To-Consent-To-Mutual-Divorce
[xi] https://www.scconline.com/blog/post/2020/11/09/divorce-by-mutual-consent-and-contempt-of-court/
[xii] https://indiankanoon.org/doc/34456399/
[xiii] https://indiankanoon.org/doc/169701404/
[xiv] Rajat Gupta v. Rupali Gupta, 2018 SCC OnLine Del 9005
[xv] 2018 SCC OnLine Del 9005
[xvi] AIR 2003 Raj 155
