HINDU LAW: DIVORCE BY MUTUAL CONSENT

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INTRODUCTION

As per Hindu Law, marriage is considered holy matrimony that ties men and women and their families in a sacred relationship. It is a religious sacrament between a man and women which bounds them permanently, for physical, social and spiritual ends of life. The modern marriage has a contractual nature. It revolves around a concept of liberty and equality. It can be said that Hindu Marriage is neither a contract nor a sacrament, but a combination of both.

In India, under the Hindu Law, Hindu Marriage Act, 1995, Special Marriage Act 1954, The Indian Divorce Act 2001, etc. govern the rights and obligations under marriage.

As per K. Srinivas Rao v. D.A. Deepa, marriage cannot be artificially reunited when it is dead for all purposes. It involves human sentiments and emotions, and hence they cannot be artificially recreated by courts decree. Therefore it provides a remedy of divorce, which means Dissolution of marriage and releasing them from its obligations.

DISSOLUTION OF MARRIAGE UNDER HINDU LAW

As per the Blacks Law Dictionary, Dissolution means “bringing to an end”. Under the law marriage is considered an agreement, therefore can be brought to an end. Thus, after the solemnization of marriage, it can be dissolved either through judicial separation or Divorce under The Hindu Marriage Act, 1995. This applies to any person whos Hindus, Buddhists, Jainas or Sikhs by religion.

Judicial Separation (S. 10)

The judicial sanction of separation permits under the law for the spouses to analyze their disturbed marriage life while living apart. There would be no obligation for either party to cohabit with the other. Mutual rights and obligations arising out of a marriage are suspended.

It was held in Hirachand Srinivas Managaonkar v. Sunanda that “the decree for judicial separation does not sever or dissolve the marriage tie which continues to subsist. It affords an opportunity to the spouse for reconciliation and readjustment.”

Divorce (S. 13)

Divorce dissolves the marriage permanently, and the parties are free from all the obligations under it. Either can appeal for divorce of the party after solemnization of marriage.

Conditions under which Judicial Separation and Divorce can be granted:

A person can appeal against his/her spouse if the defendant has:

  1. Performed Adultery
  2. Cruel behavior towards the petitioner
  3. Deserted the plaintiff (for two years or more)
  4. Deceased to be Hindu by conversion, or
  5. Unsound mind or incurable condition
  6. Venereal disease of communicable form
  7. Renounced the world
  8. Not been heard alive for seven years or more

Divorce By Mutual Consent (S. 13B)

When both the parties to the marriage agree to dissolve their marriage, they can appeal for the decree of divorce by mutual consent under section 10A of The Indian Divorce Act 2001, Hindu Marriage Act, 1995, and Special Marriage Act 1985. It is a proper appeal under the section if the parties have been living separately for a year or more and have not been able to live together.

The petition for divorced can be withdrawn between 6 months to 18  months from the date of appeal. If not withdrawn and the courts after the hearing if finds fit will pass a decree which will dissolve the marriage.

If the second motion for an appeal is not filed within 18 months of the first appeal, the court is not bound to grant a decree for divorce by mutual consent with effect from the date of the decree.

ESSENTIALS UNDER SECTION 13B

  1. The petition is filed by both the parties before District Court
  2. Parties should have been living separately for one year or more
  3. Parties should satisfy that they are not able to live together and

In Sureshta Devi (Smt) v. Om Prakash, it was held that “The expression ‘have not been able to live together’ in Section 13-B (1) indicates a broken down marriage with no possibility of reconciliation.”

  • Have mutually agreed to dissolve the marriage

It was held in Sushama v. Pramod, (2009), that “It is the duty of Court to identify whether the consent for divorce is obtained by force, fraud or undue influence on the very first date of the proceeding.”

Period of Interregnum

As per statutory interregnum, a period of six months between the first and final appeal is provided. The parties are expected to rethink and explore the different options of settlement, before the final appeal. The parties are expected to give second thoughts on their decision. This period of six months is also known as cooling off period.

Can the Period of Interregnum be waived?

The Supreme Court has discretionary power to waive the cooling-off period if finds suitable. The period of six months can be waived if

  1. A period of 1 year and six months has already passed for the spouses living separately
  2. The six months duration would prolong the agony of the separating spouses
  3. The spouses have entirely settled in separate lives and arrived on amicable resolutions on alimony, child custody, etc
  4. All efforts at mediation and reconciliation have failed

It was observed in Sureshta Devi v. Om Prakash, that If one party withdraws the appeal, the court no longer has jurisdiction to grant a divorce by mutual consent. The mutual consent should last till the decree is passed.

LANDMARK JUDGEMENTS

In the judgement of Ureshta Devi (Smt) v. Om Prakash, 1991, the appellant(wife) was married to the respondent on November 21, 1968. But after 6-7  months, they started living separately except for one month, due to court order. The time they stayed together under the decree, they did not live like a married couple.  They decided to file a suit for divorce by mutual consent.

The wife stated that her consent was taken forcefully and appealed for the case to be dismissed. The district court dismissed the case, which the High Court reversed, granting dissolution of marriage, even though the court had no jurisdiction. The consent of one was no longer consent.

The Supreme Court reversed marriage’s dissolution, stating that mere petition for divorce is not enough; the essential of divorce by mutual consent should be fulfilled. It was held in the case that the petition must be filed between six to eighteen months by approval of both the parties. And that the consent should be present till the declaration of the decree.

It was also held that “the expression ‘living separately’ in Section 13-B (1), means not having conjugal relationship even if living under the same roof.”

It was held in Sanjeeta Das v. Tapan Kumar Mohanty, “No court can assume jurisdiction to dissolve a Hindu marriage simply on the basis of the consent of the parties dehors grounds enumerated under Section 13 unless consenting parties proceed under Section 13-B.”

In Amardeep Singh v. Harveen Kaur, it was held that the Cooling-off period of six months directory. For determining whether the provision is mandatory or directory, language alone is not decisive, and the court must have regard to context, subject-matter and object of the condition. The court can waive off the statutory period under Section 13-B(2) in its discretion after considering the following factors:

  • the statutory period of six months specified in Section 13-B(2) in addition to the statutory period of one-year separation under Section 13-B(1) is already over before first motion itself;
  • no likelihood of reconciliation between parties;
  •  parties have genuinely settled all their differences including alimony, custody of the child or any other pending issue; and
  • whether the waiting period would only prolong the agony. Thus, the cooling-off period is a directory. It is open to the court to exercise discretion in facts and circumstances of each case where there is no possibility of parties resuming cohabitation. There are chances of alternative rehabilitation.

Moreover, in conducting such proceedings, the court can also use the medium of videoconferencing and also permit genuine representation of the parties through close relations such as parents or siblings where the parties are unable to appear in person for any just and valid reason as may satisfy the court, to advance the interest of justice.

It was opined in Hitesh Bhatnagar v. Deepa Bhatnagar, that the consent could be withdrawn before the decree of divorce is passed. An essential requirement for the grant of a divorce by mutual support is both parties’ free consent. Unless there is the complete agreement between parties for dissolution of marriage and unless the court is completely satisfied with respect, it cannot grant a decree for divorce by mutual consent.

ANALYSIS

Through section 13 B of Hindu Marriage Act, 1995, the consent of both the parties to marriage is essential and validates other conditions. As seen in cases, the consent must be till the declaration of the decree. India’s courts work to improve the broken marriage by providing the cooling-off period, which given parties to reconsider their hurried decisions.

In the case where the parties have already spent one year and six months separately and have no hope for reconciliation, the court has discretionary power to waiver the cooling- off period.

Therefore parties by mutual agreement can be granted a decree of divorce, dissolving their marriage permanently under this provision.

CONCLUSION

Marriage is considered as holy matrimony as her Hindu Mythology. With modernization, an increase in differences between the parties has made a need for more structured laws. The Hindu Marriage Act, 1995, The Divorce Act, The Special Marriage Act provide code for Dissolution of marriage for a Hindu, Buddhist, Sikh, Christian by religion.

It provides the freedom to decide their marriages future and impose certain rights and liabilities for the parties to the marriage.  Divorce by mutual consent is a concept introduced in amendments made to the Hindu Marriage Act,1995. Though being a holy ritual, considered as an agreement can be brought to an end.

Author: Falgun Wairya

Editor: Kanishka Vaish, Editor, LexLife India.

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