Hindus after coming into force of the Hindu Marriage Act, 1955 can seek to put an end to their marriage by either obtaining a declaration that the marriage between them was not valid on the grounds (a person already has a spouse at the time of marriage, within prohibited degree of relationship, couples are not sapindas of each other) or other provision of Hindu Marriage Act, 1955.
Divorce through Mutual Consent
Under the Hindu Marriage Act, 1955 both the husband and the wife have been given a right to get their marriage dissolved by a decree of divorce on more than one grounds specifically enumerated in Section 13.
Section 13-B (divorce by mutual consent) makes provision for divorce by mutual consent on the ground that
- Both the parties to the marriage have been living separately for a period of one year or more.
- They have not been able to live together.
- They have now mutually agreed for the dissolution of the marriage.
Couples might find incompatibility between them and might file a petition of divorce by mutual consent. It is a novel approach but, at times, a situation arises where divorce by mutual consent becomes difficult.
E.g. Where a husband tries to bargain on the conditions of divorce or times where wife out of conspiracy marries a person and demands big price for giving divorce through mutual consent (mostly involved with cases of 498A).
In Yanmnaji H. Jadhav v. Nirmala, the Supreme Court has observed that the customary divorce by mutual consent is not recognisable by a court unless specifically permitted by law because in personal law customary divorce being an exception to the general law of divorce, ought to have been pleaded and established by party propounding such customs.
In Tarun Kumar Vaish v. Meenakshi Vaish, the court observed that both parties appear to be mature, independent and fully committed even after a passage of about 8 months from the date of filing of the petition to Part Company. Thus, even after a passage of about 11 months from the date of the marriage, the parties are firm in their resolve to dissolve the marriage. Thus it is not a hasty decision to seek a divorce but the decision is a mature and a well-considered one and has not been arrived at under any external influence.
In Suit. Siislwm Prawod Taksmide v. Pramod Ramaji Taksmide, wife challenged decree of divorce by mutual consent on the ground that her signatures on divorce petition and affidavits were obtained under false pretext and there was no separation for a period of one year. After considering the fact court held that while subordinate courts passing the decree of divorce by mutual consent, the court has to be satisfied that consent was not obtained by force, fraud or undue influence.
Necessary points to be noted
The requirements for seeking divorce by mutual consent are:
- Petition for divorce has to be presented to the district court by both the parties to a marriage supported by affidavits of both the parties;
- The parties should have been living separately for a period of one year or more;
- The parties could not adjust with each other and had not been able to live together;
- There should be a mutual request by both the parties to a marriage to dissolve the marriage.
The trial court can make such enquiry as it thinks fit, including examining parties for that purpose and if it is satisfied that the consent of the parties was not obtained by force, fraud or under influence and they mutually agreed for dissolution of marriage the trial court must pass a decree of divorce.