Table of Contents
Divorce by mutual consent
Author: Sherry Shukla,
2nd year, NLU Nagpur.
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| Divorce by mutual consent |
Introduction
Marriage is considered as the union of two souls[1], a commitment to each other between two persons in an attempt to gain happiness and fulfil societal obligation through performing various rites and ceremonies. It is also considered as a sacrament[2] or a civil contract between two parties. Different views are there of people on marriage, but the sole and common view is that it is a way to perform certain duties obligations.
In ancient times, marriage was considered as a permanent union of two persons and the bond cannot be broken. Radhakrishnan commented that the marriage relationship is an indissoluble one. So, as long as we take this view it is good but if we take another view of life and see it as a way of fulfilling our desires it cannot be seen as permanent.[3] In recent times the situation has changed completely. Married couples could not withstand each other due to many reasons like contradictions between their ideas, way of living and many more things. To solve this concept of divorce came into being. To end the responsibilities, obligations, and duties, end the legal relationship, divorce came to be seen as the best way to get rid of these things and terminate the marital union.
Divorce is seen as a way to successfully negotiate and to end the relationship between two parties. But there is another side of this concept. Often it is used as a way to end the relationship forcefully without the consent of another party especially women, so another dimension of divorce came into being i.e. divorce by mutual consent by parties. Since independence, it is seen that there is upliftment in the condition of women. The materialistic era has brought several changes that have changed the view of people on this issue. Various steps are taken to ensure the better condition of them, to change the status of women in society.[4] So this was also seen as the step towards the upliftment of women’s condition.
Divorce by mutual consent was seen as the best way to settle a dispute between the parties arising out of clashes of interest arising between them. It is seen as the best way to end a marital relationship. As said by Bertrand Russell, “perhaps easy divorce causes little unhappiness than any other system”[5]. It is seen as a way to restructure and reorganize the family and individual. Ahrons and Rodgers pointed out “While marriages may be discontinued, families-especially those in which there are children -continue aft
er marital disruption…They do so with the focus on the two ex-spouse parents now located in separate households-two nuclei to which children and parents alike, as well as others, must relate.”[6] So, it can be inferred that it divorce does not mean the end of everything. Divorce by mutual consent is a completely different aspect and is a very good step towards changing the family law system in India.
er marital disruption…They do so with the focus on the two ex-spouse parents now located in separate households-two nuclei to which children and parents alike, as well as others, must relate.”[6] So, it can be inferred that it divorce does not mean the end of everything. Divorce by mutual consent is a completely different aspect and is a very good step towards changing the family law system in India.
Ways of filing of divorce by mutual consent under religious laws.
A different group of people is governed by different laws and their procedure is also diverse. The Indian court system is governed by various acts related to divorce.
So, the procedure is different for different religion. But, commonly, these laws require the sanction of a court or other authority.
The table given below contains a summary of the mentioned procedures, laws applicable and conditions for divorce by mutual consent.
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Law
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Hindu Law
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Muslim Law
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Christian Law
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Parsi Law
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Special Marriage Act
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Under Section 13-B of the Hindu Marriage Act, 1955.
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Under Shariat Law (Mubarak) and Dissolution of Muslim Marriage Act, 1939
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Under Section 10-A of the Divorce Act, 1869.
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Under Section 32-B of the Parsi Marriage and Divorce Act, 1936.
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Under Section 28 of the Special Marriage Act, 1954.
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Court
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Petition to the District Court together.
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Notice to the Chairman in writing by the Couple.
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Petition to the District Court together.
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A suit by the couple must be filed together.
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Petition to the District Court together.
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Conditions
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The intended parties must be living separately for one year or more.
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Not specified.
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The intended parties must be living separately for two years or more.
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The intended parties must be living separately for one year or more.
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The intended parties must be living separately for one year or more.
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Cooling Period
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1 year + 6 months (not mandatory)
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90 days.
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1 year + 6 months (not mandatory)
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1 year + 6 months (not mandatory)
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1 year + 6 months (not mandatory)
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Conditions necessary for successful granting of divorce by mutual consent
There are various steps involved in the process of granting a divorce by mutual consent. We will take into account every aspect of the divorce by mutual consent.
1. Withdrawal of consent after the filing of the divorce petition
A married couple can withdraw his consent even after filing of the petition. It is seen that the cooling period is provided instead of giving intended parties another chance to rethink on their decision. If the concerning party withdraws its consent then, money received as maintenance must be returned to the other party.[7]
2. Mandatory presence of both the parties during the procedure of divorce
It has been contested that the parties must be present for both the motion during the procedure of divorce. But if due to certain circumstances if parties are not available then, the trial court grants the opportunity to be present for completing the divorce procedure.[8]Even the statement of the concerned party can be made by any family member or person concerning the couple.[9]
3. Waiving off cooling period by the parties
There are 2 essentials conditions to be fulfilled for divorce by mutual consent in India. They are:-
1. The parties have to be living separately for one year.
2. Consent between the parties is essential for filing and granting of divorce by mutual consent.
The first time it was seen in the case of P. Sunderraj v. P Sarika Raj[10]where parties went for waiving of the cooling period but the court ordered that it cannot be dismissed and they must go through this period. Then in the case of Pooja Deswal v. Sagar Deswal[11], it was held that the power of waiving of the cooling period does not lie in the hands of the court and the period of 6 months provided under section13-B[12]of the Hindu Marriage Act, 1955 cannot be waived off.
Landmark judgment related to waiving of the cooling period: Amardeep Singh v. Harveen Kaur
The year of 2017 was seen as remarkable in the history of providing divorce by mutual consent. It was seen as a big step towards change in the dimension of divorce by mutual consent. The court in this year in the case of Amardeep Singh v. Harveen Kaur[13]held that the cooling period of 6 months is not mandatory and it can be waived off. This was seen as a landmark judgment towards changing the picture of divorce in India. The contesting party no longer need to observe cooling period as mentioned in section 13-B (2)[14]of the Hindu Marriage Act, 1955. But it is upon the discretion of the court to wave off the cooling period as various guidelines need to be followed before waiving off the cooling period.
Conclusion
This section has incorporated in itself the doctrine of discharge from the contractual obligation by mutual consent of the parties. Considering the vital importance and necessity of marital life in society various things are kept in mind while granting a decree of divorce to the parties. Divorce by mutual consent provides an opportunity of amicable resolution of disputes between parties and saves time and money. Various changes have occurred to the procedure of granting divorce by mutual consent and various contrasting judgments have also been passed by that. Seeking divorce by mutual consent will eventually minimize the hassles and difficulties faced by couples in comparison to a contested divorce and further simplify the process for both parties.
[2]Shahnaz Huda, “DOUBLE TROUBLE”: HINDU WOMEN IN BANGLADESH- A COMPARATIVE STUDY, 1998, p.116.
[3]Radhakrishanan, THE HINDU VIEW OF LIFE, 1968, p. 62.
[4]Ram Prakashv. Savitri Devi, AIR 1958 Punj
. 87.
. 87.
[5]Bertrand Russell, II AUTOBIOGRAPHY OF RUSSELL.
[6]Ahrons, C.R., & Rodgers, DIVORCED FAMILIES: A MULTIDISCIPLINARY DEVELOPMENT VIEW, 1987.
[7]Deepak Singhv. Pooja, 2015 SCC OnLine P&H 18265.
[8]Ramola Manderv. Charanjit Singh Mander, 2015 (3) Law Herald 2556.
[9]Rajwant Singh Bainsv. Kulwant Kaur Bains, 2014 SCC OnLine P&H 6146.
[10]P. Sunderrajv. P Sarika Raj, AIR 2015 (P&H) 83.
[11]Pooja Deswalv. Sagar Deswal, 2014 SCC OnLine P&H 11283.
[12]Section 13-B of Hindu Marriage Act, 1955.
[13]Amardeep Singhv. Harveen Kaur, (2017) 8 SCC 746.
[14]Section 13-B (2) of the Hindu Marriage Act, 1955.