Theoretical overview
Mutual consent divorces are those where both husband and wife agree to the divorce. Where the parties mutually decide that they no longer want to stay as a couple under Section 13B of Hindu Marriage Act. Such a mutual consent should purely be voluntary and not obtained by force, fraud, coercion etc,
The period of 6 to 18 months provided in section 13B is a period of interregnum which is intended to give time and opportunity to the parties to reflect on their move. In this transitional period the parties or either of them may have second thoughts.
ESSENTIALS
- Parties should be living separately
The spouses must be living separately for a period of 1 year.
The term living separately does not necessarily mean that they are living away from each other.
- Parties have not been able to live together
Even after the parties efforts to stay together they are not able to live with one another.
- They have mutually agreed that marriage should be dissolved
If the parties have not been able to live together and mutually decide to get divorce the court grants the divorce. The decision should be mutual and not subjected to any form of fraud, force or coercion. There is a cooling down period starting from six months to 8 months before finalising a divorce. It gives them a second chance to rethink their marriage, but this period is not mandatory. It is discretionary.
Relevant sections
13B Divorce by mutual consent.
(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 (68 of 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 not 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petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnised 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.
Important case laws
Sureshta Devi v. Om Prakash
It was made clear that living separately does not necessarily mean living in different places. The parties can be living together but not as spouses.
Amardeep Singh Vs Harveen Kaur (2017)
The couple had some internal disputes and things went from civil proceedings to criminal proceedings. The couple no longer wanted to live together the supreme court decided that the laying of the divorce would only further hurt both the parties and therefore it waived off cooling down period and the divorce was finalised.
Pradeep Pant & anr v. Govt of NCT Delhi
The parties were married and had a daughter from their wedlock. However, due to temperamental differences between them, they were not able to live together and decided to live separately. Court granted them divorce under mutual consent
Points to remember
- Mutual consent divorces are those where both husband and wife agree to the divorce
- Where the parties mutually decide that they no longer want to stay as a couple under Section 13B of Hindu Marriage Act.
- It was made clear that living separately does not necessarily mean living in different places.