Mutual divorce, as it is commonly called, is undoubtedly the most convenient method to terminate a marital relationship, without getting involved in multiple litigations, claims and counterclaims based on allegations against each other.
Leaving behind all the strained memories, the husband and wife can put an end to their marriage, which has already and actually been broken down irretrievably, by filing a joint petition before a competent court of law, in most of the cases, a family court.
The provisions for obtaining a decree of divorce on the basis of mutual consent of the parties are provided under Section 13-B of the Hindu Marriage Act,1955, which reads as follows:
13-B. 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 solemnized 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petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been 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.]
The aforesaid provision reveals that the essential conditions for grant of a decree of divorce are as under:
In Smt. Sureshta Devi vs Om Prakash, (1991) 2 SCC 25 it was held by the hon’ble Supreme court that
8. That there are 3 requirements in sub-section (1). They are :
It was further held in Smt. Sureshta Devi vs Om Prakash (supra), that living separately does not necessarily mean that the parties should be living in a separate place. It was held
9. That expression `living separately `, connotes to our mind 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.
10. Under sub-section 2 the parties are required to make a joint motion not earlier than six months after the date of presentation of the petition and not later than 18 months after the said date. This motion enables the court to proceed with the case in order to satisfy itself about the genuineness of the averments in the petition and also to find out whether the consent was not obtained by force , fraud or undue influence. The court may make such inquiry as it thinks fit including the hearing or examination of the parties for the purpose of satisfying itself whether the averments in the petition are true. If court is satisfied that the consent of parties was not obtained by force, fraud or undue influence and they have mutually agreed that the marriage should be dissolved , it must pass a decree of divorce.
“Whether this period of six months waiting period can be waived by a court?” will be discussed in another blog to be posted soon.