Divorce by Mutual Consent under Hindu law: Concept & Procedure
Introduction:
Divorce is nothing much cessation of marriage between a legally wedded couple. In this action the duties and responsibilities comes to an end legally. Various grounds are given under Section-13 of Hindu Marriage Act, 1955. Section-13(b) of the Act states divorce by mutual consent means the couple is not willing to stay together and wants to dissolve their marriage mutually. The ground of divorce takes place when both of them want to live individually or are living separately without any interference of each other. It saves a lot of time and money by the parties, so this can be said the best ground of divorce. Any consent which is taken forcefully will not be regarded as mutual consent here.
The divorce can only be granted if the Court is satisfied with, both, husband and wife are living single-handedly for one year or more or living together but not as husband and wife. Both the parties should be ready to part ways with consent and there is no scope for adjustment. Period of Interregnum is given to both the parties.
The Supreme Court held that minimum period of 6 months stipulated under Section 13B(2) of the Hindu Marriage Act, 1955 for a motion for passing decree of divorce on the basis of mutual consent isn’t mandatory and can be waived by the Courts depending on the facts and circumstances of the case.
This judgment was delivered by a Bench of Justice AK Goel and Justice UU Lalit in an appeal against a judgment of the Delhi High Court.
Theories of Divorce under Hindu Law
- Guilt Theory of Divorce
As per guilt theory of divorce, marriage can be dissolved only when one of the spouses has violated a matrimonial offence such as adultery, rape, cruelty etc. In this it is necessary to have a guilty and a completely innocent party, in which remedy of divorce can only be asked by the innocent party. If both the parties have been at fault, there can be no remedy for dissolution of marriage and that is the major drawback of this theory.
- Mutual Consent Theory of Divorce
According to this theory, it requires the consent of both the parties and if one of them refuses, divorce can never be obtained. Granting divorce on this ground is a positive effort and good for both, husband and wife before spoiling the married life more. - Irretrievable Breakdown Theory of Divorce
This theory says if the marriage has been broken down and there is no use of keeping the relationship going on, then it is better to end it. The theory believes if this happen, then the divorce shall be granted. Except for the Supreme Court no other court can grant divorce on the theory of irretrievable Breakdown.
Procedure of Divorce by Mutual Consent
As per law, duration of getting a Divorce Divorce by mutual consentis six months. The divorce petition has two motions i.e. first motion and second motion. In the first motion the lawyer representing both the parties make affidavits, a petition signed by the parties, here the petition is always a joint petition as it is divorce by mutual consent, in which they must give all the valid reasons for dissolving the marriage. Whereas, the parties can fill the second motion petition any time between six months and eighteen months from the date of filling the Mutual Consent Divorce Petition.
Parties desiring of Mutual Consent Divorce are always uncertain about terms and conditions of mutual consent divorce, process, child custody, maintenance, place where petition can be filed.
If there are child(ren), spouses should decide amongst themselves who shall be having the physical custody of children, as well as duration of visitation rights, interim custody during vacations and holidays. Parties can also have joint custody or shared parenting in mutual consent divorce process.
Next aspect which is the most important is financial settlement. There are various aspects of this such as maintenance, house, istridhan, joint investments, joint accounts, education expenses etc.
Petition for mutual consent divorce can be filed at any of the given places:
- Place of marriage.
- Place where husband and wife last resided.
- Place where wife is residing at the time of filing the petition.
Once the petition is filed in the Family Court, parties are required to be present in the court for recording the statement. When the recording of the statement is done, it is said First Motion has been granted. Here, if one of the parties is unable to come, they can appear through power of attorney. Power of Attorney should be family member of the spouse.
After the first motion is done, parties are told to wait for six months before moving for second motion. This six month period is generally called cooling-off period. This period is given to the parties to see if they are having second thoughts about the marriage. This period can also be extended up to eighteen months.
This six month period can be waived by filing an Application for waiver of six months. Family Court has the wisdom to waive of the period. Time period can be waived off and may be reduced to 15 days or a month or so.
In the case Amardeep Singh v. HarveenKaur, the Supreme Court made a notable observation by holding that six months cooling off period as expected is not necessary.
Parties will have to appear in the court again for recording the statements again, if they are unable to resolve their marriage after six months period or after waiver of six months.
Parties have liberty to withdraw their consent of divorce during the six months i.e. before the second motion.
After all this the Court passes a final order dissolving the marriage by granting them the decree of divorce and thereby the marriage stands dissolved.
There always have been and are pros and cons in each aspect. Divorce by mutual consent is a peaceful settlement between husband and wife, to which both of the parties have agree and come to that conclusion. This makes it simpler and easier for the Judge to pass an order, which saves time, money and lot of efforts of both the parties as to explain why they want a divorce. Usually, the marriage is dissolved for meaningless reasons but they mutually agree to part ways and voluntarily agree to cancel the marriage.
Author: Neha Ghuge,
Government Law College, Mumbai/Second Year