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, 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, 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,1986, 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, 1954.
Conditions for filing a Mutual Divorce
Section 13B of the Hindu Marriage Act deals with the conditions that must be fulfilled before filing a mutual divorce:
Both spouses:
- Must live separately for at least one year;
- Mutually agree that they cannot stay together and their marriage has collapsed;
- Agree to comply and file jointly for a mutual divorce without any undue influence.
- Consent should be free which means consent in case of divorce by mutual consent should not be obtained by fraud, force, or undue influence[i]
In P. Sunder Raj v. P. Sarika Raj[ii]– 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.
What is the Mutual Divorce Procedure in India?[iii]
Step 1: Filing of a Divorce Petition
The divorce proceedings initiate with the filing of a divorce petition and it has to be filed in the Court having the jurisdiction that shall be determined on the following grounds:
- The couple last lived
- The marriage was solemnized
- The wife currently resides
The parties willing to initiate mutual divorce proceedings have to jointly file a petition and the family court shall serve the notice to both parties. The ground for separating includes the unwillingness of both the parties to live together and they mutually want to get separated. Another ground of initiating the proceedings could be an unsettled dispute between the couple and they have been living separately for over a year. The joint petition has to be signed by both parties involved.
Step 2: Court hearing and inspection
Both the parties have to appear before the family court and the court then go through the filed petition along with the supporting documents. The court may attempt reconciliation between the parties, and if it seems to be impossible then the mutual divorce process continues.
Step 3: Record Statement on Oath
The Family court records the statements of both the parties on oath.
Step 4: First Motion
The court passes the first motion and after that, the parties to the marriage have to wait for 6 months (cooling-off period) before filing the second motion. The second motion has to be submitted 18 months after passing the first motion.
The cooling-off period is discussed below in detail, as to what is it and why is it required, can the same be avoided, etc.
Step 5: Second Motion and Final Hearing
Once the parties have decided to go ahead with the second motion then they can go ahead with the final hearing before the court. Under a final hearing, the parties have to state their case, and the court records the statements of the parties on oath.
Step 6: Divorce Decree
Once the couple mentions that there exists no issue between them about alimony, child custody, sharing in the property, etc. the mutual divorce process reaches the final stage. If satisfied the Family Court passes a decree of divorce declaring that the marriage is dissolved.
Rajiv Chhikara v. Sandhya Mathu (2016)[iv]– The Delhi High Court in the instant matter stated that reneging on a settlement constituted a kind of mental cruelty. If the spouse has been living separately since 2009 and their relationship were beyond repair and if one spouse insists on maintaining the marriage then it is equivalent to a mental cruelty condition.
Divorce by mutual consent [Section 13B]: A case study
Manoj and Seema are well-educated persons. Within six months of marriage, they realized that they cannot get along with each other on account of sharp individual differences. After having lived separately for a year, they found that there are no chances of reconciliation. They can approach a Court for a decree of divorce by mutual consent. This will avoid unnecessary allegations against each other.
A petition under this provision can be filed after the parties have lived separately from each other for at least a year. A decree is not passed immediately. The parties have to wait for six months. They are free to withdraw the petition during this period. The Court passes a decree of divorce, if the parties move the Court for passing decree not earlier than six months after the date of the presentation of the petition and not later than eighteen months after the said date.
Cooling off period
The Apex Court in Sureshta Devi v. Om Prakash[v], stated that filing of the petition with mutual consent does not authorize the court to make a decree for divorce. There exists a cooling-off period of 6 to 18 months. This gives the parties time and a chance to reflect on their move and reconsider their decision. There might be a case if the parties change their mind and decide to reconcile.
In another case of Hitesh Bhatnagar v. Deepa Bhatnagar[vi]– The Apex Court clarified that the object of the cooling-off period aims to safeguard both the parties against a hurried decision and there might be a possibility that their differences get reconciled.
The object of cooling off period
- To safeguard against a hurried decision if there was otherwise possibility of differences being reconciled
- Not to perpetuate a purposeless marriage or to prolong the agony of the parties when there was no chance of reconciliation
- Every effort has to be made to save a marriage if there are no chances of reunion and there are chances of fresh rehabilitation
- The court should not be powerless in enabling the parties to have a better option.
Important judgments
Can proceedings filed u/s 13(1) be converted to Section 13B proceedings?
No, in the case of Kaizer Basu v. Mahua Basu[vii], it was clarified by the court that a proceeding initiated u/s 13(1) of the Hindu Marriage Act, 1955 cannot be converted to a mutual divorce proceeding u/s 13B of the Hindu Marriage Act, 1955. The parties have to file a new petition u/s 13B of the Hindu Marriage Act, 1955 before the District Court. It was further confirmed by the Bombay High Court in Priyanka Amit Patil v. Amit Ramesh Patil, 2021.
Can the consent be withdrawn after filing for Divorce by Mutual Consent?
The Court held[viii] 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, inspite of the fact that 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[ix].
The Kerala High Court held that if the parties agree to file a joint petition pursuant to a compromise between them then in that case they are estopped from withdrawing from the agreement[x].
Can the cooling-off period be waived?
Yes, the Apex Court has held that Section 13B(2) is a directory and not mandatory. If any court dealing with a case of mutual divorce is satisfied that an appropriate case has been made out for waiving the cooling-off period, then it may do so subject to the following conditions[xi]:
- The statutory period of six months provisioned u/s 13B(2), along with the statutory period of one year mentioned u/s 13B(1) of separation of parties is over before the first motion itself;
- All efforts for reconciliation including the efforts in terms of Order XXXIIA Rule 3 of the Civil Procedure Code, Section 23(2) of the Act; Section 9 of the Family Courts Act for reconciliation of the parties have failed;
- The parties have put in genuine efforts to settle their differences about alimony, custody of the child or any other pending issues between the parties;
- The waiting period will only prolong their agony;
- The waiver application can be filed one week after the first motion giving reasons for the prayer for waiving.
Further, in Sureshta Devi v. Om Prakash[xii], the Apex Court explained that the intention of the cooling-off period aims at enabling the parties to reflect on their decision and making an attempt to resolve their differences. But, the cooling-off period often contradicts the free will of the parties.
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] Section 23(1)(bb) of the Hindu Marriage Act,1955
[ii] AIR 2015, Punjab 83
[iii] https://www.indiatoday.in/information/story/stey-by-step-procedure-to-file-for-a-mutual-divorce-1534492-2019-05-27
[iv] https://indiankanoon.org/doc/169701404/
[vii] AIR 2014 Calcutta, 180
[viii] Rajat Gupta vs. Rupali Gupta, 2018 SCC OnLine Del. 9005
[ix] https://www.hindustantimes.com/cities/mumbai-news/mutual-consent-for-divorce-can-t-be-unilaterally-withdrawn-without-sufficient-cause-hc-101644690648989.html
[x] BENNY V MINI [Matrimonial Appeal. No.1066 OF 2017]
[xi] Amardeep Singh v. Harveen Kaur on 12 September, 2017
[xii] AIR1992SC1904
