Sec 13 B of the Act deals with “Divorce by Mutual Consent” this sec was inserted under the Amendment Act of 1976. It means ” both the parties agree to dissolve their marriage”. in other words, both the wife and husband are willing to get separated by Divorce. According to Sec.13-B (I) he such a petition is required to be moved jointly by the parties to marriage on the ground that they have been living separately for a period of one year or more and they have not been able to live together and also that they have agreed that the marriage should be dissolved.

“Living Separate” means that parties are not living as husband and wife, irrespective of the fact that they are living in the same house or in different houses.

Unilateral withdrawal of consent by one party: Bombay, Haryana and Kerala high Court have expressed the view that a spouse is free to withdraw his or her consent unilaterally at any time .

There have been conflicting judgements on this regard that whether the courts should mandatorily wait for a period of six months as given in the sub section(2) of Section 13B. In the Grandhi Venkata Chitti Abbai AIR 1999 AP 91 case, the court observed that- “If Section 13-B (2) is read as mandatory, the very purpose of liberalizing the policy of decree of divorce by mutual consent will be frustrated more so when the parties started living separately for a considerable time. Thus s 13-B (2) though is mandatory in form is directory in substance. Likewise, in the case of Dinesh Kumar Shukla v Neeta, AIR 2005 MP 106 it was held that the waiting period is directory in nature and it can be brought down from 6 months( provided the mandatory requirements of s 13-B (1) are fulfilled) when all efforts at reconciliation failed.

But, in the case of Hitesh Narendra Doshi v Jesal Hitesh Joshi,AIR 2000 AP 364 it was held that “the provision has a definite purpose and object, i.e. giving time to the parties for introspection and reconciliation. That purpose and object stares at us so clearly by the language expressed in s 13-B (2) of the Act robbing away the right of the court from considering the petition earlier than six months.”

If the parties who have filed for divorce under mutual consent and after the end of the 6 month period what is to be done if either of them do not turn up. Will it amount to withdrawal of consent? Rajasthan High Court in the case of Suman v Surendra Kumar AIR 2003 Raj 155 has answered these issues. In this case the husband after filing a joint consent petition for divorce did not appear for hearings. The family court held that no decree could be passed in the absence of both the parties. On appeal it was held by the court that- “When one party has himself left the matter for inference, the inference ought to be drawn in favour of consent rather than for absence of consent.” It was held that silence cannot be taken to amount to withdrawal of consent.

Important Legislations Under Which Mutual Consent Divorce Can Be Filed

• Section 13B of the Hindu Marriage Act, 1955 (applicable to all Hindus, Jains, Sikhs) mandates a period of separation of 1 year ,
• Section 28 of the Special Marriage Act, 1954 ( applicable to all marriages between parties belonging to different religions, castes, NRI’s etc) mandates a period of separation of more than one year,
• Section 10 A of the Indian Divorce Act for Christian Couples mandates a period of separation of two years.

What points to incorporate in the joint mutual consent divorce petition?

Best Divorce Lawyers should consider incorporating the following legal points while drafting a divorce petition:

• The parties have completely separated from each other as they were unable to pull together on account of lack of understanding and temperamental differences between them. Several meetings have already taken place between the parties with the due intervention of common relatives, however, no fruitful results could be obtained
• The marriage has now broken down irretrievably and irreparably.
• The parties have not lived together as husband and wife for more than one year and since then they have been living separately.
• The parties have voluntarily arrived at an amicable settlement resolving their disputes and deciding to part ways.
• One-time settlement/agreement in full and final.
• Nothing remains due about any item/Sridhar, maintenance-past present and future.
• Mutually agreed by both the parties that if any complaint/case/application is pending before any competent court of law/competent authority, which is not in the knowledge of either of the parties or has escaped their attention shall also be withdrawn by them.
• The consent for filing the present petition has not been obtained by the parties by force, fraud, inducement, or undue influence of any kind.
• The petition has not been presented in collusion with the parties.

How to File for Mutual Consent Divorce:

There are several steps involved in order to get a divorce by mutual consent. The procedure of mutual divorce in India generally begins with the filing of a petition as has been given under Section 13B of the Hindu Marriage Act. There are also two motions involved in this procedure. The following are the important steps:

1. Filing a Joint Petition:

The first step is the filing of a joint petition in the respective family court. This joint petition is to be signed by both parties. The divorce petition contains a joint statement by both the partners, that due to their irreconcilable differences, they can no longer stay together and should be granted a divorce. This statement also has the agreement to split the assets, custody of children, etc.

2. Appearance of Both Parties in Court:

The second step of the procedure is the appearance of both the parties to the divorce in the family court after the petition has been filed. The court fixes this date and the parties appear along with their counsels.

3.Scrutiny of the Petition by Court:

The court thereafter scrutinizes the petition and the documents filed by the parties. When and if the court is satisfied, it orders for the recording of statements of the parties on oath. In some cases, the court attempts to bring about reconciliation between the parties. When there is a failure to reconcile the parties, the divorce matter is proceeded with.

4.Recording of statement and passing of the order on First Motion:

After the statements of the parties have been recorded on oath, an order on the first motion is passed by the court. After this, a 6-month period is given to the parties, after which the parties are required to file the second motion. This has to be filed within a period of 18 months from the date of the filing of the petition for the first motion.

5.Appearing for Second Motion:

After 6 months of the first motion or by the end of the reconciliation period, if both parties still don’t agree to come together, then the parties may appear for the second motion for the final hearing. This also involves the parties appearing and recording statements before the court. In a recent judgment, the Supreme Court has categorically stated that the six months period is not mandatory and can be waived off depending upon the discretion of the court. If the second motion is not made within the period of 18 months, then the court will not pass the decree of the divorce. Besides, according to the section, as well as the settled law, it is clear that one of the parties may withdraw their consent at any time before the passing of the decree.

6.Decision of the Court:

The most important requirement for a grant of divorce by mutual consent is the free consent of both parties. In other words, unless there is a complete agreement between the husband and the wife for the dissolution of the marriage and unless the court is completely satisfied, it cannot grant a decree for divorce by mutual consent. Upon the basis of the statements as recorded by the parties and upon the basis of the particular facts and circumstances of the cases, the court gives the appropriate orders and dissolves the marriage. The court then passes the decree of divorce and now the divorce becomes final.

What is not essential for divorce by mutual consent?

For parties to seek divorce by mutual consent, they must be living separately for a period of atleast one year, and must resolve towards the end of the marriage. They must not be performing marital obligations – physical separation is not a criteria.

How long does divorce by mutual consent take?

So in case of divorce by mutual consent, it usually takes 6-18 months. In case of a contested divorce, the period is longer, ranging from three to five years because of complications and possibility that either party can challenge the decision in the High Court and Supreme Court.

Can wife file case after mutual divorce?

If a woman agrees to waive her right to claim maintenance from her husband, and opts for a divorce by mutual consent, she cannot later demand maintenance under the Code of Criminal Procedure (CrPC), the Madras High Court has held.

Conclusion:

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.