MARRIAGE

The institution of marriage is considered to be of sacramental

value and thus treated as an inseparable bond. However, with the
changing social conditions and the evolution of society, this idea
of the inseparable bond between husband and wife has also
evolved.

Marriage has always been considered a holy relationship in every

religion around the world. It is said that relationships are made in
heaven and couples just meet each other on earth. It is not just a
relationship between two people, but a relationship between two
different families. Two different people from two different
families come together and start a new family. Anyhow, marriage
is still an agreement, and like all other forms of agreement, it can
also be brought to an end.

There are multiple legislations in India regarding marriage such

as The Indian Christian Marriage Act, 1872; Muslim Marriage
Act, Special Marriage Act, and Hindu Marriage Act. In this
article, we are going to deal only with the Hindu Marriage Act,
specifically how to end a marriage by mutual consent as per the
Act.

DIVORCE UNDER OLD HINDU LAW

In ancient times, divorce was unheard of in Dharamshastra laws
as marriage was seen as an unbreakable and sacred bond. The
belief was that a husband and wife were meant to be together for
life, and even death didn't end the wife's duties, prohibiting her
from remarrying.
While the old Hindu law generally didn't allow divorce, some
communities, like the Shudras, did have customs allowing it. In
the 1940s, specific laws recognized divorce, such as the Bombay
Hindu Divorce Act, 1947, and the Madras Hindu Bigamy
Prevention and Divorce Act, 1949. However, these laws were
replaced by the Hindu Marriage Act, 1955.

DISSOLUTION OF MARRIAGE UNDER THE HINDU

MARRIAGE ACT, 1955

In the old days, divorce wasn't a thing because marriage was seen
as an unbreakable bond. But as times changed, our laws adapted
to the evolving needs of society. Divorce is essentially the legal
way to end a marriage when a couple can't live together anymore.

Now, under the Hindu Marriage Act, if a marriage is valid but

needs to end, there are options. You can go for Judicial
Separation under Section 10 or Divorce under Section 13 and
Section 13B. Section 13A even provides alternative options
during divorce proceedings. These changes in laws reflect
society's need for flexibility in dealing with marital issues.

JUDICIAL SEPARATION – (SECTION 10 OF HINDU

MARRIAGE ACT, 1955)

Section 10 in The Hindu Marriage Act, 1955

Judicial separation.-

(1)Either party to a marriage, whether solemnized before or

after the commencement of this Act, may present a petition
praying for a decree for judicial separation on any of the
grounds specified in sub-section (1) of section 13, and in the
case of a wife also on any of the grounds specified in sub-
 section (2) thereof, as grounds on which a petition for
divorce might have been presented.(2)Where a decree for
judicial separation has been passed, it shall no longer be
obligatory for the petitioner to cohabit with the respondent,
but the court may, on the application by petition of either
party and on being satisfied of the truth of the statements
made in such petition, rescind the decree if it considers it just
and reasonable to do so.

Back in the Shastri Hindu Law era, the idea of judicial

separation, a way for couples to live apart without officially
divorcing, wasn't a thing. However, during British rule, the courts
allowed some relief for wives. Wives could ask for support and a
separate place to live if the husband had a serious illness, treated
her badly, or had another person living with them.

When we look at the Hindu Marriage Act of 1955, introduced the

provision of judicial separation under Section 10. This is quite
similar to the Hindu Married Women’s Right to Separate
Maintenance and Residence Act, 1946, which gave married
Hindu women the right to claim support and separation.

So, in simpler terms, even though judicial separation wasn't a

concept back in older Hindu laws, over time, the legal system
adapted to allow married couples, particularly women, the option
to seek support and live separately under certain circumstances.
This provided a way for couples to take a break without officially
ending their marriage.

JUDICIAL SEPARATION IS AN ALTERNATIVE TO

DIVORCE

However, it does not put the marriage to an end. The parties do

not cohabit, but other obligations of marriage still exist. The
parties remain husband and wife, even though they might live
separately and do not have a sexual relationship. One cannot
remarry in the case of judicial separation. This Section even
applies to Hindu marriages that have been solemnized before the
commencement of this Act. To put it simply, the remedy of
judicial separation puts an end to the conjugal duties of both
spouses and allows them to live separately.

Even though the parties remain spouses, sexual intercourse must

be with consent, even in the case of marriage. Section 376B of
the IPC states that if a man tries to have sexual intercourse with
his wife without her consent during judicial separation, he may
face a prison sentence of up to 2 years and/or a fine.

Section 10 of the Act mentions that the grounds for judicial

separation are the same as the grounds for divorce provided
under Section 13(1) of the Act. No separate grounds are
enunciated in the HMA, 1955, and hence the Act provides that
Section 10 of the Act has to be read with Section 13 and Section
13-A, which provide for grounds of divorce and the court’s
power to grant judicial separation where divorce is prayed by the
parties. Also, as per sub-section (2) of Section 10, the court can
rescind the decree of judicial separation if it is satisfied to do so,
on the petition of either of the parties.

After the amendment made in 1976, by which the grounds of

divorce and judicial separation were identical, it has been
observed that the petitions for judicial separation have become
comparatively less frequent. The reason is that no couple would
prefer judicial separation if they could rather opt for divorce on
the same grounds. Since divorce will release the couple from the
marital tie entirely, judicial separation won’t.

With the grounds of judicial separation and divorce being

similar, the question that arises is, whether judicial separation can
be granted by the court at its discretion where the petitioner has
instead sought divorce. The Delhi High Court dealt with this
question in the case of Vinay Khurana v. Shweta Khurana
(2022). The Court, while dealing with the matter, stated that it is
not at the court’s discretion what relief is to be granted. The court
cannot substitute the relief prayed for by the petitioner. It further
emphasized the fact that the concepts of judicial separation and
divorce are entirely different. In the present case, the family
court, while adjudicating the matter, granted the decree of
judicial separation when a decree of divorce was sought by the
petitioner. The High Court further stated that the family court has
not been conferred with the power to substitute the reliefs prayed.

DIVORCE – (SECTION 13 OF HINDU MARRIAGE ACT,

1955)

Etymologically, the term “divorce” which is derived from the

Latin word “dovortium” is a mixture of two words,
namely, “dis” which means “apart” and “vertere” which means
“to turn.” The term “divorce” denotes the separation of the
parties to the marriage, i.e., husband and wife. It is the
dissolution of the marital relationship. By breaking the marital
ties, the husband and wife are released from the responsibilities
and obligations that they would otherwise be bound to perform
together.
In the case of divorce, the marriage is brought to a permanent
end. All marital obligations are lifted, and the parties are free to
remarry. The parties no longer remain husband and wife.

The parties are free to choose whether they want a decree of

judicial separation or divorce, and the court may grant the decree
if satisfied.

The Hindu Marriage Act, 1955, was the first legislation that
granted a divorce under Hindu law, as the same concept found no
place in Hindu Shastric Law. Section 13 of the Hindu Marriage
Act, 1955, provides for the circumstances in which either of the
spouses can opt for divorce. It is important to note that, as
enumerated in Section 14, parties cannot file a petition for
divorce within one year of their marriage. However, Section
14(1) states that parties can seek divorce within one year if the
petitioner faces exceptional hardships or otherwise if it becomes
a case of exceptional depravity on the part of the respondent. The
court, under the same sub-section, also has the power to dismiss
such a petition of divorce presented before a period of one year if
it finds out that the petition was filed under any
misrepresentation or if there is any concealment of facts by the
petitioner. Presently, the term “exceptional depravity” is not
defined under any Indian Act, however, the same in layman’s
language can be termed as a situation when a person is deprived
of something that he or she extremely desires, or in a normal
situation, cannot be expected to live without or suffer.

Clause (2) of the Section mandates that the court while

dismissing a petition due to the non-completion of a period of
one year, shall try all possible efforts of reconciliation when a
similar petition is filed after the expiry of one year, looking into
the interests of children, if any, or if there exists any probability
of reconciliation in marriage.

The concept of divorce as enshrined under the HMA, 1955, is

based on the “fault theory,” which means that the Act provides
the grant of divorce to the parties, based on the faults or sins that
one of the parties has committed. These fault grounds on which a
party can seek a decree of divorce or judicial separation are
mentioned in Section 13 of the Act.

 Section 13(1) of the Act provides that either of the

parties can seek divorce by way of filing a petition on
the following grounds, namely, sexual intercourse with
any person other than spouse, cruelty, desertation,
conversion of religion, unsound mind or mental
disorder, either of the party is suffering from leprosy or
venereal disease in a communicable form, if one of the
spouse has renounced the world by entering into any
religious order, or if any one of the spouse has not been
heard alive for a period of 7 years or more. The
petitioner can seek a decree of divorce on any of the
above mentioned grounds. The Section further provides
for the explanation of terms “mental disorder”,
“psychopathic disorder” and “desertation”.

 Section 13(1A) of the Act further talks about two

additional grounds, which were inserted after an
amendment made in 1976. These two additional
grounds are;
1. If the parties have not cohabited for two years or more
after the passing of decree of judicial separation, or

2. If there has been no restitution of conjugal rights for a

period of one year or more after the passing of decree
for the restitution of conjugal rights.

 Clause (2) of the Section mentions additional grounds

on which the wife can seek a decree of divorce. The
additional grounds are:

1. Section 13(2)(i))– when the husband already had a wife

at the time of his marriage; or

2. Section 13(2)(ii)– A wife can seek a decree of judicial

separation or divorce if the husband is found guilty of
rape, sodomy, or bestiality; or

3. Section 13(2)(iv)– The third additional ground provided

to the wife is that if she was married before the age of
puberty (15 years), she can apply for divorce or judicial
separation after attaining a majority.

In the case of Dharmendra Kumar v. Usha Kuma

(1977), the Apex Court, while dealing with a
petition for divorce on the grounds mentioned in
Section 13(1A)(ii) of the Act, granted divorce to the
wife. In this case, the wife applied for the grant of a
divorce decree after around two years of a decree of
restitution of conjugal rights in her favour. In reply
to the petition, the husband contended that the wife
refused to entertain, receive, or reply to any of his
 letters wherein a request was made by him to live
with her. The Court stated that even if the above
allegations are true, this does not disentitle the wife
to ask for a divorce decree.

In the case of Sirajmohmedkhan Janmohamadkhan v.

Hafizunnisa Yasin Khan (1981), the unfolding story captured
the struggles of a wife seeking support. She bravely sought
financial help from her husband by filing a maintenance request
under Section 125 of the Code of Criminal Procedure, 1973.

Her plea echoed the challenges she faced – a husband who

admitted to his inability to fulfill physical aspects of their
marriage and subjected her to cruel treatment, ultimately leading
to her departure. The initial disappointment came when the lower
court rejected her plea, deeming impotency alone insufficient
grounds for financial support.

Determined to seek justice, the wife took her appeal to the High
Court of Gujarat, which, understanding the nuances of her
predicament, ruled in her favor. However, the legal journey didn't
end there. The husband, dissatisfied with the outcome, appealed
to the highest authority, the Supreme Court.

In a thoughtful review, the Supreme Court acknowledged that

proven impotency could inflict both mental and legal cruelty.
This crucial realization became the cornerstone for granting the
wife the financial support she sought. The Court's decision not
only validated her plea for maintenance but also supported her
choice to refrain from continuing to live with a husband who had
failed in his marital obligations. It's a narrative of a woman's
courage seeking fairness, navigating the complexities of both
legal intricacies and personal struggles

In the case of Durga Prasanna Tripathy v. Arundhati Tripathy

(2005), The wife left the husband after seven months of
marriage, and they lived apart for 14 years. Despite attempts to
reconcile, the wife refused to resume married life. The Court
granted a divorce under Section 13(1) of the Hindu Marriage Act,
1955, citing cruelty and desertion as grounds.

GROUNDS FOR JUDICIAL SEPARATION AND

DIVORCE – SECTION 13(1)

ADULTERY:

If one spouse has a sexual relationship with someone other than

their partner, it can lead to seeking separation or legal partition
by filing a request with the family court. Infidelity becomes a
ground for legal division or separation when either spouse
engages in a physical relationship outside of the marriage. In
such a situation, the affected party can file a request for
separation or legal detachment.

To prove infidelity in court, the person making the claim

typically needs to rely on supporting facts, such as:

1. Circumstantial evidence,
2. Instances where there's no evidence of contact between the
spouses, and the wife is pregnant,
3. A clear confession by the other party involved in
extramarital activities, or a confession in some other
related proceedings,
 4. Any letters or other evidence of communication between
the involved parties suggesting a sexual relationship.

In simpler terms, if one partner is unfaithful, these are the

kinds of proofs that might be considered when seeking legal
intervention to address the impact on the marriage.

In the case of Mrs. Pragati Varghese v. Cyril George Varghese

(1997), a crucial understanding emerged regarding proving
adultery. It was established that the plaintiff can use
circumstantial evidence, but it must be strong enough to
eliminate any possibility of innocence on the part of the
respondent.

Importantly, it was emphasized that engaging in illicit

relationships before marriage cannot serve as a basis for seeking
a judicial decree.

In situations where someone realizes that their marriage is invalid

due to prohibited degrees of relationship under Hindu law and
subsequently remarries, any intimate connection with the
previous spouse can be considered adultery. In such cases, the
affected party, typically the wife, has the right to seek a decree of
judicial separation or divorce.

This legal perspective, grounded in the Mrs. Pragati Varghese

case, reflects the complexities of human relationships and the
legal nuances surrounding issues like adultery and remarriage. It
reminds us that the law considers not only the actions but also the
circumstances surrounding them when making decisions about
the bonds of marriage.

CRUELTY:

In simple terms, cruelty in a marriage refers to when one spouse

treats the other in a harsh or harmful way. Section 13(1)(i)(ia) of
the Hindu Marriage Act addresses this issue. While the Act
doesn't provide a specific definition for "cruelty," it generally
includes physical violence, mental distress, extramarital affairs,
toxic behavior, and more. The courts decide whether a particular
behavior qualifies as cruelty based on the specific facts and
circumstances of each case.

In the case of A. Jayachandra v. Aneel Kaur (2005), the Supreme

Court clarified that "cruelty" in the context of divorce and
judicial separation pertains to human conduct. The Court
emphasized that the behavior complained about should be severe
enough to lead to the conclusion that the spouses can no longer
live together. In this specific case, the wife's actions, including
casting doubt on her husband's reputation, character, and fidelity,
were deemed as cruel. Despite the wife's claim that it was just
advice, the Court disagreed, recognizing the harmful impact on
the husband.

Interestingly, the Court also mentioned that even though the

irreversible breakdown of a marriage isn't a specified ground for
divorce under the Hindu Marriage Act, 1955, in certain
circumstances where it can relieve the suffering of the parties and
serve justice, a court has the authority to grant a divorce decree.
This underlines the human aspect of legal decisions,
acknowledging the emotional and relational complexities within
marriages.

DESERTION:

In everyday terms, Section 13(1)(i)(ib) of the Hindu Marriage

Act, 1955 deals with the concept of desertion, which essentially
means one spouse leaving the other for a continuous period of at
least two years without any valid reason. Desertion is like
abandoning the marriage, choosing to live separately without any
intention of returning.

To seek divorce on the grounds of desertion, it's crucial that the

spouses have not lived together during this time, and the
departure was a willful act. Just breaking off the relationship or
living separately without a proper reason doesn't qualify as
desertion. It has to be a deliberate and unjustified abandonment
of marital responsibilities.

In a real-life example, the case of Usharani Pradhan v.

Brajkishore Pradhan (2005) highlighted a situation where the
wife left her husband and children for seven years to pursue
personal ambitions. The court considered this as desertion,
upholding the divorce decree and commenting on the wife's
actions affecting family life.
Similarly, in Santosh Singh v. Sumita Singh (2022), the
Chhattisgarh High Court granted divorce when the wife did not
return to her matrimonial home for almost 10 years, waiting for a
supposedly auspicious time. The court deemed this act as
desertion under Section 13(1)(i)(ib) of the Hindu Marriage Act,
1955.

These cases illustrate how the legal concept of desertion involves

not just physical separation but a willful and unjustifiable
abandonment of marital responsibilities, impacting the lives of
those involved.

CONVERSION:

If one spouse decides to convert to another religion, Section

13(1)(ii) of the Hindu Marriage Act, 1955 allows the other
spouse to seek a divorce or judicial separation. Before the 1976
Amendment Act, conversion was only a ground for divorce, but
now it is also a basis for judicial separation. However, the person
who converted cannot be the one to seek a decree of judicial
separation or divorce on the grounds of their own conversion.

In the case of Madanam Seetha Ramulu v. Madanam Vimala

(2014), a wife who converted to Christianity after marriage
prompted her husband to file for divorce. The Andhra Pradesh
High Court granted the divorce, citing the wife's conversion as a
valid ground. It's important to note that marriages solemnized
under special statutes are not covered by this section, and they
cannot be dissolved under these grounds.
Another ground for seeking divorce or judicial separation is
insanity, as stated in Section 13(1)(iii) of the Hindu Marriage
Act. If either spouse suffers from incurable unsoundness of mind,
it's a valid reason for seeking separation. The 1976 Amendment
removed the requirement to establish the unsoundness of the
other party for a specific period before filing the petition. The
petitioner now needs to show that the respondent has been
consistently or intermittently suffering from a mental disorder,
making it impossible to live together.

In the case of Utpal Hazari v. Maya Hazari (2018), the Jharkhand

High Court emphasized that a marriage shouldn't be dissolved
solely on the grounds of mental disorder resulting from the
sudden death of a sixteen-year-old son. The court recognized the
unique circumstances, stating that it wasn't a case of incurable
unsoundness or insanity.

These instances highlight the legal considerations surrounding

personal choices, religious conversions, and mental health in the
context of marriage. They emphasize the need for a humane and
nuanced approach when deciding the fate of a marriage.

LEPROSY:

It is a kind of bacterial infection, which is a contagious

disease. Prior to the amendment made in the year 2019, Section
13(1)(iv) of the Hindu Marriage Act provided leprosy as a
ground of divorce and judicial separation. The Personal Laws
(Amendment) Act, 2019, removed the disease of leprosy, as a
ground for seeking decree of divorce. Before the passing of this
amendment, the 20th Law Commission of India in its 256th
Report titled as “Eliminating Discrimination Against Persons
Affected by Leprosy”, recommended the removal of leprosy as a
ground of divorce. The Law Commission Report stated that,
since there have been a great advancement in the medical
facilities, and medicinal treatment, such diseases have now up to
a large extent have become curable. Thus, to still have such
provisions in the various personal laws will be discriminatory to
the person suffering from the disease.

The Apex Court in the case Pankaj Sinha v. Union of India

(2018), issued similar guidelines. In the case of Pankaj Sinha, a
writ petition was filed under Article 32 of the Indian
Constitution, in which it was prayed that the Union of India and
other respondents be issued directions to conduct regular national
surveys in determining the cases of leprosy, and to bring the
reports in the public domain. It was also sought by the petitioner
that regular awareness camps be conducted to raise awareness
and curb the fear of such diseases. In light of the relief sought by
the petitioners, the Apex Court released certain guidelines to
formulate and adopt measures to eradicate leprosy.

To get a decree of judicial separation or divorce (when this

ground is available), the petitioner has to establish that the
respondent has been suffering from leprosy for a period that is
not less than a year immediately before the filing of the petition.
However, after the amendment made in 1976 the statutory period
of one has been deleted, and the term “incurable” has been
inserted. The petitioner is now required to establish that the other
spouse is suffering from a virulent and incurable form of
leprosy.
VENEREAL DISEASE:

The petitioner can file a petition seeking a decree of divorce or

judicial separation on the ground that the other spouse is
suffering from venereal disease (a disease that can be transmitted
through sexual intercourse) in a communicable form. Prior to the
amendment, the suffering of the spouse from a venereal disease
for at least three years was an essential requirement. In the case
of Prasanna Krishanji Musale v. Mrs. Neelam Prasanna Musale
(2022), the Bombay High Court while dismissing the husband’s
appeal against the judgement of the trial court for grant of
divorce under Section 13(1)(ia), 13(1)(ib), and 13(v) of the
HMA, 1955, wherein he falsely accused his wife of having HIV
Positive, and had refused to cohabit with her.

Renunciation of the world: Section 13(1)(vi) of the HMA, 1955,

lays down that if any of the party to the marriage has renounced
the world to unite with God or for the search of the truth, the
other spouse can seek divorce or judicial
separation. Renunciation from the world was the ground
available only for getting a decree of divorce and not judicial
separation before the amendment done in the year 1976. In the
case of Shital Das v. Sitaram (1954), the Supreme Court held
that, the renunciation announced by the spouse infers to a
religious order, which works or implies civil death, and this is the
reason why the other party has been provided with the right to
seek decree of divorce or judicial separation. It is important that
the petitioner establishes the fact that the other spouse has joined
some religious order contrary to the concept of marriage. A mere
declaration that the other spouse has renounced the world does
not prove to be a sufficient ground.

PRESUMPTIVE DEATH:

Under Section 13(1)(vii) of the HMA, 1955, if one party to the

marriage has not been heard alive for seven years, then the other
spouse can seek divorce or judicial separation on the ground of
presumptive death. Presumption of death of the other spouse, if
the person has not heard of being alive for a period of seven
years or more, is a ground available to seek divorce or judicial
separation. In order to prove this ground, it is required that the
petitioner establishes that no person who would have naturally
heard from the respondent knows about him or her being alive. In
the case of Nirmoo v. Nikka Ram (1968), the Delhi High Court
held that, if the spouse presumes the death of the other spouse,
and without getting a divorce in such a case, remarries to the
other person, then, the person that has returned after the span of
seven years or more can contest the validity of the second
marriage.

DIVORCE BY MUTUAL CONSENT – (SECTION 13B OF

HINDU MARRIAGE ACT, 1955)

In a case where none of the aforementioned grounds is available

but the parties decide they do not want to remain married to each
other or cannot live with one another, they can seek divorce by
mutual consent under Section 13B of the Hindu Marriage Act.

The Hindu Marriage Act, 1955 enshrines the right to divorce by

way of mutual consent under Section 13B. The spouses can
jointly file a petition seeking divorce under Section 13B before
the family court, which possesses the jurisdiction to pass such a
decree of divorce under Section 13B. The Section expressly
mentions the conditions under which the spouses can file a
petition for the grant of divorce by mutual consent.

In order to seek divorce on the grounds of mutual consent, the

parties must have been living separately for a period of at least
one year. The term living separately connotes that the parties
must not live together as husband and wife, however, it does not
say that the parties cannot live under the same roof if they are
filing a petition for divorce by mutual consent. The important
factor that is to be addressed is that there is no possibility of them
living together as husband and wife. Another essential ingredient
is that the parties are not able to live together and have mutually
agreed that their marriage has no chance of reconciliation and
that in no way can the dispute between the parties be resolved.

The judiciary has conflicting opinions regarding the waiting

period that is prescribed in the provision of Section 13B. There
have been clashes while considering the period of waiting as
directory or mandatory. In the case of Gandhi Venkata Chitti
Abbai v. Unknown (1988), the Allahabad High Court held that
the waiting period was mandatory. However, in the case
of Dinesh Kumar Shukla v. Neeta (2005), the Madhya Pradesh
High Court held that the period prescribed under Section 13B is
directory in nature and can be brought down below 6 months if
the circumstances of the case demand so. Putting an end to this
question, the Apex Court, as discussed in the later part of the
article, has held that the waiting period under Section 13 B can
be waived if the circumstances demand it.

The parties at the time of filing the petition for divorce must
mutually agree on the same, however, the consent can be
withdrawn unilaterally if one of the spouses in the waiting period
is of the opinion that he or she does not want a divorce. It is
pertinent to note that the decree for divorce by mutual consent
cannot be passed ex parte, i.e., both parties must be present at the
time of the passing of the final decree.

ESSENTIALS OF DIVORCE BY MUTUAL CONSENT

PARTIES SHOULD BE LIVING SEPARATELY

Section 13(B) of the Act prescribes that in order to mutually

dissolve a marriage, the spouses should be living separately for a
period of at least 1 year before filing the petition.

This period of one year where the parties have lived separately
must be immediately before the filing of the petition. “Living
Separately” in the context of Section 13B does not necessarily
mean physically living in different places. The parties could be
living in the same house, sharing the same roof but there can still
be a distance between the two.

If that is the case then they are not considered to be living as

husband and wife, which qualifies as living separately.

The same was held by the Hon’ble Supreme Court in the case
of Sureshta Devi v. Om Prakash. Wherein it was made clear that
living separately does not necessarily mean living in different
places. The parties can be living together but not as spouses.

PARTIES HAVE NOT BEEN ABLE TO LIVE TOGETHER

It is said that relationships are made in heaven, however

sometimes the holy relationships do not work for long on Earth.
These days divorce is taken very lightly and people go for it as a
first resort whereas the intention behind the law of divorce was to
make it a last resort. Many times, in a marriage it so happens that
the spouses can’t stand each other and can no longer live together
happily. That is when they opt for divorce by mutual consent.

Sadly enough, it often happens that the parties are not able to live
together even after trying mediation and reconciliation and
putting multiple efforts, before filing a divorce petition by mutual
consent.

In Pradeep Pant & anr v. Govt of NCT Delhi, the parties were
married and had a daughter from their wedlock. However, due to
temperamental differences between them, they were not able to
live together and decided to live separately. Despite putting their
best efforts they were unable to reconcile their marriage and
could not see themselves living together as husband and wife
ever again. A divorce petition was jointly filed and issues such as
maintenance and custody of their child were decided and agreed
upon by both.

The wife would get custody of their daughter and the husband
would reserve visitation rights, it was mutually agreed upon by
both of them. Both parties gave their free consent without any
undue influence. The court observed that there was no scope of
reconciliation and granted a decree of divorce.

After filing a petition for divorce by mutual consent, the parties

are given a waiting period of 6 months, also known as a cooling
period and it may extend up to 18 months. During this time the
parties must introspect and think about their decision.

If the parties are still not able to live together after the cooling
period, then the divorce petition shall be passed by the district
judge.

They have mutually agreed that the marriage should be

resolved

In some situations – the parties may choose to give their marriage

another chance and mutually resolve their marriage. During the
waiting period, the parties may sometimes be able to reconcile
and make their relationship work.

After the first motion has been passed, the parties have a total of
18 months to file for second motion and if they fail to do so
within those 18 months, both parties are deemed to have
withdrawn their consent mutually.

Procedure for getting a decree of divorce by mutual consent

Step 1: Jointly filing a petition

A divorce petition in the form of an affidavit is to be signed by

both parties and filed before a family court in their region.
Jurisdiction of the court should not be a major issue in filing for
divorce as the petition can be filed within the local limits of the
ordinary civil jurisdiction of where the marriage was solemnized
or where either of the parties currently resides.

As mentioned earlier, the parties to a marriage must be living

separately for at least one year before filing the petition.

Step 2: First motion

After filing the petition the parties shall appear before the court
and give their statements. If the court is satisfied and the
statements are recorded then the first motion is said to have been
passed, following which a waiting period of 6 months will be
given to the parties before they are able to file the second motion.

This waiting period as statutorily prescribed under Section

13B(2) of the Act is for the parties to introspect and think about
their decision. It is a time given for them to reconcile and give
their marriage another chance, just in case they decide to change
their mind.

Anyhow, sometimes the court may be convinced that the

marriage has reached the point of no return and the waiting
period will only expand their misery. In that case, this period can
be waived off by the court. This period if not waived off can
extend up to 18 months. If the parties still want to get divorced
they may now file for second motion. The second motion can be
filed only after the waiting period of 6 months and before 18
months has elapsed.
Step 3: Second motion

This is when final hearings take place and statements are

recorded again. If the issues of alimony and child custody (if
any) are mutually agreed upon the decree of divorce is passed
after this step. The marriage has finally ended by now and
divorce by mutual consent has been granted.

IS THE SIX MONTH WAITING PERIOD MANDATORY

FOR GETTING A DIVORCE BY MUTUAL CONSENT

Getting a divorce is a very serious matter, it can destroy and

separate families. But, on the other hand, the parties get to
exercise their right to choose and pursue their happiness as there
is no point to continue being in a matrimonial relationship if the
spouses are not happy. For couples who go for filing divorce by
mutual consent are given time to try and make their marriage
work. They are advised to go for mediation and reconciliation to
sort their issues out.

However, many times these efforts don’t work and people

actually go through with the divorce.

While filing for divorce by mutual consent the parties have

already lived separately for a period of over one year per the
statutory requirement. So, there is very little to no chance that
they can make the marriage work again.

In the case of Amardeep Singh v. Harveen Kaur, it was observed

that the couple had internal disputes and their married life was
not the best one. The disputes escalated really bad and many civil
and criminal proceedings were followed.

They mutually decided to resolve all the disputes and file for
divorce by mutual consent. The custody of their children would
be with the husband, and permanent alimony was paid to the
wife.

After all these issues were mutually sorted by the parties they just
wanted a quick divorce and sought to waive off the waiting
period. The parties could no longer be with each other and the
waiting period would only prolong their agony.

Keeping this in view, Hon’ble Supreme Court laid down the

waiting period of six months can be waived off if the court is
satisfied that the spouses have lived separately for more than the
statutorily prescribed time of at least one year and have settled
the issues of alimony and custody of children(if any).

Hon’ble Supreme Court also observed that the waiting period

will do nothing but merely prolong the misery and sufferings of
the parties unable to live together anymore.

In another case of K. Omprakash v. K. Nalini, the parties were

not happy with their marriage anymore and were allegedly
having extramarital relationships. It was the contention of the
petitioner that they were living apart without ever visiting each
other for more than a year and so, there was no scope of
reconciliation between them.
They blamed each other for their suffering and unhappiness.
Both alleged each other to be involved in a series of illicit
relationships but denied ever being involved in such relationships
themselves.

There was no other option left but only to file for divorce by
mutual consent. The marriage had suffered irretrievable damage
and had reached a point of no return.

Both parties prayed for an instant divorce and a waiver of the

waiting period. Observing that the parties had lived separately for
long enough and there was no scope of getting the marriage to
work again.

The High Court of Andhra Pradesh held that Section 13B(2) of

the Hindu Marriage Act should be read not as a statutory
mandate, but only as a directory.

Hence, the waiting period which was once mandatory in nature

now remains discretionary.

WHETHER CONSENT CAN BE UNILATERALLY

WITHDRAWN FOR DIVORCE BY MUTUAL CONSENT

After the first motion, if the parties are provided with the waiting
period they may sometimes decide to change their mind. Not all
cases of divorce are irreparable and some may still have some
scope of reconciliation and the parties may choose to withdraw
their consent and give their marriage a second chance.
The waiting period proves to be very useful for some cases as the
parties get to go for mediation which may change their mind. The
consent of the parties is also deemed to be withdrawn after the
expiry of the waiting period of 18 months, wherein a decree of
divorce shall not be granted.

The phrase “Divorce by Mutual Consent” is self-explanatory, it

simply means that the consent of both parties is required in order
for the court to grant the decree of divorce. In Sureshta Devi v.
Om Prakash, the wife’s consent was fraudulently obtained by the
husband for filing a divorce. The wife was unwilling to give her
consent for divorce and therefore she did unilaterally revoked her
consent.

Upon reading the judgement of the Supreme Court we can

conclude that a party can unilaterally withdraw their consent if
the same has not been freely given.

After the first motion has been passed the parties will have
agreed to settle on various issues such as alimony, custody of
children and other marital expenses. Now, If one of the parties
unilaterally withdraws their consent the other party may suffer
prejudice that could be irreversible.

In Rajat Gupta v. Rupali Gupta, the court says that the

agreement between the parties to settle their issues and opt for
divorce by mutual consent is a binding agreement and a form of
undertaking. If a party now unilaterally withdraws their consent,
they would be in breach of their undertaking made before the
court of law, resulting in civil contempt of court by wilfully
disobeying an undertaking. If the consent has to be withdrawn
unilaterally, it must be done so on a just and reasonable ground
and the other party must not suffer prejudice.

Therefore, consent can be unilaterally withdrawn only in

exceptional cases on reasonable grounds.

SUPREME COURT VIEW ON THE UNILATERAL

WITHDRAWAL OF CONSENT FOR

DIVORCE BY MUTUAL CONSENT

In the case of Hitesh Bhatnagar v. Deepa Bhatnagar (2011),

initially a divorce petition under Section 13 B of the Hindu
Marriage Act was filed before the District Court, Gurgaon. The
parties in the aforesaid case got married in 1994 and were
thereafter blessed with a girl in 1995. However, due to certain
differences, they started living separately, and since then they
have been living separately, owing to which they filed for
divorce under Section 13 B in the year 2001. Later on, when the
case was in second motion, the wife withdrew her consent,
although the husband still insisted on the grant of a decree of
divorce. Due to a withdrawal of consent by one of the parties, the
petition was dismissed by the Learned Additional Districts Judge,
Gurgaon. The appellant husband, aggrieved by the order of the
Learned Additional Districts Judge, Gurgaon, filed an appeal
before the Punjab and Haryana High Court, which was again
dismissed. Thereafter, the husband moved to the Supreme Court.
The issue before the Supreme Court was whether consent can be
withdrawn by one of the parties after filing a divorce petition
under Section 13 B after the expiration of more than 18 months.
The second issue before the court was whether divorce under
Section 13 B can be granted after the withdrawal of consent by
one of the spouses. The circumstances under which divorce was
to be granted in spite of the withdrawal of consent by one of the
parties were also to be laid down by the Apex Court.

The Apex Court dismissed the appeal filed by the husband,

stating that the courts only grant the decree of divorce when they
are convinced beyond a doubt that the marriage is irreversibly
broken down. However, in the present case, the wife is firm on
her stand that for the future of her daughter, she is willing to put
all the bitterness that exists between the parties behind her and is
ready to live with her husband. In such a case, where there is still
a chance that the marriage can work, granting divorce will not be
appropriate. As far as the period of 18 months is considered, the
court stated that this period is provided for speedy disposal of
cases and is in no way a direction that specifies the period of
withdrawal of consent. It was further stated by the Hon’ble Court
that if the second motion in the divorce case does not begin
within the period of 18 months, then the Court is not bound to
pass a decree of divorce by mutual consent. It is to be noted that
a second motion by both parties is not made prior to the
completion of a period of 6 months from the date on which the
case was filed.

DIFFERENCE BETWEEN JUDICIAL SEPARATION AND

DIVORCE
Judicial Separation Divorce

The provision for judicial The provision for the grant of a

separation is provided under decree of divorce is under
Section 10 of the Hindu Section 13 of the Hindu
Marriage Act, 1955. Marriage Act, 1955.

In the decree of divorce, the

In judicial separation, the
obligations of marriage no
relationship between the
longer exist. The relationship
parties just stands
between the spouses ceases to
superseded.
exist.

In cases of judicial separation,

the original marital status of
the parties can be restored.
However, they can seek a After the passing of the decree
decree of divorce if the two of divorce, the marital status of
have not cohabited for a the parties cannot be restored.
period of one year after the
passing of the decree of
judicial separation.

After the passing of the divorce

In the decree of judicial
decree, the parties can choose
separation, parties are not
to remarry after the lapse of the
entitled to remarry.
statutory period.
Anil Kumar Jain v. Maya Jain (2009)

Facts of the case

In the present case, the appellant husband filed the appeal before
the Apex Court, seeking divorce under Section 13B and asking
the court to invoke the extraordinary powers enunciated
under Article 142 of the Constitution of India. The husband and
wife, owing to the differences between them, filed a joint petition
under Section 13 B seeking divorce by way of mutual consent.
After the filing of the divorce petition, the learned lower court
fixed a date for the further proceedings after asking the parties to
wait for the six months statutory period. At the next date, the
wife stated that, though she acknowledges the differences, she
does not wish to dissolve the marital ties. On the other hand, the
husband reiterated his stand. Based on the withdrawal of consent
by the wife, the lower court dismissed the petition for divorce by
mutual consent.

Being aggrieved by the order passed by the lower court, the

husband filed an appeal before the Madhya Pradesh High Court.
However, since the wife was firm with her stand that she does
not want dissolution of their marriage despite the differences
between the two, and hence the appeal filed by the husband was
dismissed by the High Court. It further stated that the husband is
free to file an appeal before the Apex Court. The Court said so,
because the High Court does not have any such extraordinary
powers, to grant divorce in such a situation when one of the
parties has withdrawn their consent. Hence, present appeal was
preferred by the husband before the Hon’ble Supreme Court.
Issue involved in the case

Whether the court under Article 142 can grant the decree of
divorce under Section 13B in the present case or not?

Judgement of the Court

The Apex Court opined that normally it is necessary that the

consent of both parties subsist till the end of the divorce
proceedings under Section 13B, and that withdrawal of consent
by one of the parties leads to the dismissal of the petition.
However, the Apex Court stated that when the proceedings under
such circumstances move to the Supreme Court and the Court is
satisfied that a divorce decree can be granted looking into the
facts and circumstances of the case, it can invoke the power
under Article 142 of the Constitution and grant the decree of
divorce.

Devendar Singh Narula v. Meenakshi Nangia (2012)

Facts of the case

In the present case, the marital ties between the parties subsisted
merely on a superficial basis, and both parties had been living
separately since their marriage. Three months after the marriage
took place, the appellant filed a petition under Section 12 of the
HMA, 1955. The matter went to mediation, and the parties
decided to divorce by mutual consent. The learned family court
fixed the next date owing to the statutory waiting period. In the
meantime, parties approached the Supreme Court to invoke
Article 142.
Issue involved in the case

Whether divorce under Section 13B can be granted before the

statutory waiting period provided under the Act or not?

Judgement of the Court

The Apex Court, looking into the facts and circumstances of the
case and finding that there were no marital ties between the
parties at all and that the marriage only existed in name, granted
divorce to the parties before the completion of the six months
statutory period.

Shri Uttam Kumar Bose v. State of West Bengal (2023)

Facts of the case

In the present case, the petitioner is a lawfully wedded husband,

however, the married life of the petitioner and the respondent
wife was not peaceful. The reason contended by the petitioner is
the extremely hostile, adamant, and inimical attitude of the
respondent’s wife towards the petitioner and his family members.
The respondent’s wife developed various medical conditions and
disorders that caused her infertility, thereby making her unable to
conceive. The respondent wife used to blame her husband for the
diseases she suffered and used to torture him for that reason.
Being agitated by this, the petitioner served legal notice to the
respondent’s wife, thereby asking her to grant a divorce by
mutual consent. In reply to the aforesaid legal notice, the
respondent’s wife lodged a complaint against the present
petitioner and his family members. The learned lower court
allowed the criminal proceedings against the husband, and being
aggrieved by this, the present petitioner for quashing of the
impugned proceedings knocked on the doors of the Calcutta High
Court.

Issues involved in the

1. Whether the learned lower court erred in allowing the

criminal proceedings or not.

2. Whether the present situation of the infertility of the

wife is a valid ground for divorce?

JUDGEMENT OF THE COURT

The Calcutta High Court held that the infertility of the wife is not
a valid ground for divorce. The Court further opined that there
are several ways in which the parties can become parents, and the
husband has to be sensitive in such matters where the wife is
already suffering mentally, as in the present case due to her being
unable to conceive. The Court dismissed the revision plea filed
by the husband against the quashing of criminal proceedings.

CONCLUSION

Divorce is a serious issue and must be used only as a last resort,

however, these days people do not think twice before getting
divorced. It splits families and the child of the separating couple
has to go through serious trauma growing up with separated
parents.
Having said all that, countries having higher divorce rates have
higher standards of women empowerment. People get to exercise
their right to choose to end the marriage if they are not happy.

Divorce by mutual consent is the best way of divorce as the

parties do not have to bad mouth each other in the courtroom and
both parties can mutually settle on all issues and end their
marriage.

The legislature has set numerous grounds for the legal

termination of marriage, but the decorous way of seeking a
divorce that is beneficial for both parties is by way of mutual
consent.