Mutual Consent

With the passage of time, divorce has became a less mortifying practice in the society. People are welcoming and respecting the decisions of dissolving a marriage when there are compatibility issues. Divorce with mutual consent is that option which alleviates the agonies attached to an unhappy marriage and protracted divorce procedure in India. Our experienced divorce lawyers in Chandigarh are persuasive in settling such matrimonial disputes where both the parties have accepted that their relation is completely irretrievable. Our team comes with the most viable suggestions under the boundaries of jurisprudence to decide the various divorce issues amicably.

What is the procedure for divorce with mutual consent in India? Mutual divorce in India takes how long? Is uncontested divorce really a fastest divorce possible in India?  All these queries are obvious to hit one’s head when deciding to take divorce in India. Time is the most crucial thing and an undeniable fact is that, Indian jurisprudence has been criticized for it’s spun out proceedings.

Thousands of cases are pending in the Indian courts and matrimonial matters are major one among them. The lawmakers has kept on making amendments to avoid such complexities and making law much public-friendly. Various new rules for divorce in India are being introduced and most recent one is removing the leprosy from the list of legal grounds for divorce. Compatibility issues can really make a relation much poisonous and divorce with mutual consent is a right recourse in case there is no chance of reconciliation.

Divorce with Mutual Consent in India

Divorce is a legal separation of husband and wife, effected by the judgment or decree of a court, and either totally dissolving the marriage relation, or suspending its effects so far as concerns the cohabitation of the parties. There exist different species of divorce depending upon the country where the parties reside. However, in India, under the Hindu Marriage Act, 1955, only two kinds of divorce are allowed, i.e. fault divorce and divorce by mutual consent which is not to be confused with ‘no-fault divorce’.

Fault divorce means that one party is guilty of an act or acts enumerated under Section 13 of the Hindu Marriage Act, 1955. While a divorce by mutual consent does not require the parties to delve into blame-game and the parties concerned are not required to prove fault or grounds for divorce available under Section 13 of the Act beyond a showing of irretrievable breakdown of the marriage* or irreconcilable differences.

* Irretrievable breakdown of the marriage is a condition in which either or both spouses are unable or unwilling to cohabit as husband and wife and for which there are no prospects for reconciliation.

The concept of divorce by mutual consent can be traced back to the Roman law whereby, the term ‘Bona Gratia’ was used, which translates to “by mutual consent”; “voluntarily”. This term, in Roman times, applied to the species of divorce where the parties separated by mutual consent; or where the parties renounced their marital engagements without assigning any cause, or upon mere pretexts.

Section 13B of the Hindu Marriage Act, 1955, was inserted in the Act in 1976 to introduce divorce through mutual consent and it states that:

(1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnised before or after the commencement of the Marriage Laws (Amendment) Act, 1976, on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.

(2) On the motion of both the parties made no earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.”

What are the Requirements for Divorce by Mutual Consent in India?

The requirements which have to be met to seek divorce under the Hindu Marriage Act are as follows:

  1. The parties have been married for a year;
  2. They have been living separately for at least one year;
  3. They have not been able to live like husband and wife, i.e. the marriage has broken down irretrievably; and
  4. They have mutually agreed that marriage should be dissolved.

The ‘living separately’ debate:

The Hon’ble Supreme Court of India in the case of Sureshta Devi versus Om Prakash, 1992 AIR 1904, ruled out that “the expression ‘living separately’ connotes not living like husband and wife. It has no reference to the place of living. The parties may live under the same roof by force of circumstances, and yet they may not be living as husband and wife. The parties may be living in different houses and yet they could live as husband and wife. What seems to be necessary is that they have no desire to perform marital obligations and with that mental attitude they have been living separately for a period of one year immediately preceding the presentation of the petition.”  Therefore, it is clear that the basic requirement for the parties involved is to establish that they have not been cohabiting as ‘husband and wife’, i.e. not performing their marital obligations and does not necessarily mean physical separation.

How to establish jurisdiction for the petition for mutual consent divorce?

Section 19 of the Hindu Marriage Act, 1955 outlines the provision concerning the jurisdiction of a court to entertain a petition under the Act. It sets out the following jurisdiction:

  1. Where the parties were married;
  2. Where the parties last resided together;
  3. Where the wife is presently residing; and
  4. Where the petitioner is residing if the respondent is living outside the territory of India and has not been heard of being alive for seven years or more.

Separation Agreement:

A separation agreement is a written arrangement concerning custody, child support, alimony and property division made by a married couple who are usually about to get a divorce. Separation agreements are usually made a part of mutual divorce petitions to clarify the above-mentioned issues.

The “Cooling-off” period

After the first movement of the divorce by mutual consent, the Court grants a period of six months to the parties which is referred to as the ‘cooling-off’ period. The term ‘cooling-off’ literally translates to “a period of time in which no action of a particular sort may be taken by either side in a dispute.” The said period of six months is granted by the court as a last resort for the parties to revisit their decision before finally terminating their marriage. The object of the cooling off the period is basically to provide a safeguard against a hurried decision if there is otherwise a possibility of the differences being reconciled.

There has been a lot of debate surrounding whether or not the cooling-off period is mandatory. On this question, the Hon’ble Supreme Court in Amardeep Singh versus Harveen Kaur, Civil Appeal No. 11158 of 2017, held that a case is made out to waive the statutory period if the following conditions are satisfied:

“i) the statutory period of six months specified in Section 13B(2), in addition to the statutory period of one year under Section 13B(1) of separation of parties is already over before the first motion itself;

ii) all efforts for mediation/conciliation including efforts to reunite the parties have failed and there is no likelihood of success in that direction by any further efforts;

iii) the parties have genuinely settled their differences including alimony, custody of the child or any other pending issues between the parties;

iv) the waiting period will only prolong their agony.”

The Supreme Court accepted that though it does not possess the discretionary power to override the explicit provisions of the Hindu Marriage Act or any other statute for that matter, but the court categorically reached a conclusion that the provision of the Hindu Marriage Act requiring the six months cooling-off period is not mandatory but only directory in nature. Therefore, it is in the discretion of the courts entertaining divorce cases to waive the cooling-off period in exceptional circumstances, if certain terms are fulfilled as discussed above.

Video conferencing facilities in divorce proceedings

In Santhini versus Vijaya Venketesh, Transfer Petition (Civil) No. 1278 of 2016, the Supreme Court by a majority judgment of two judges against one, held that:

  1. Video conferencing facilities can only be used when both the parties agree before that video conferencing can be used. The use of video conferencing facilities for the hearing of a divorce case can only be permitted on a specific joint application of both parties or if both parties file consent memorandums with respect to the use of video conferencing.
  2. Video conferencing facilities can only be used after the court is satisfied that no settlement or resolution is possible between the parties.
  3. Video conferencing cannot be used as an alternative to transferring divorce proceedings in cases in which transfer petitions have been filed.

Special/General Power of Attorney in Mutual Divorce Matters:

In certain cases where one of the spouses cannot appear before the court in person during the first/second motion or cannot be present for filing the case, for that matter, because of him not being present in India, or some other reason, then that party can file the petition for mutual divorce through a special or general power of attorney appointing someone else, probably a family member, to appear on his behalf and give the statement. The various High Courts in a number of cases have allowed the use of special/general power of attorney for filing the case and for appearance in the court in the cases of divorce by mutual consent.