Introduction
In every religion on the planet, marriage has traditionally been seen as a sacred union. Relationships, it is thought, are formed in heaven and couples only meet on earth. It’s not just a romantic relationship between two people; it’s also a relationship between two families. Two members from two separate households marry and form a new family together. In any case, marriage is still a contract, and just like any other contract, it can be terminated and they can take Divorce.
The Indian Christian Marriage Act, 1872; Muslim Marriage Act, Special Marriage Act, and Hindu Marriage Act are only a few of the laws that govern marriage in India. In this essay, we’ll focus solely on the Hindu Marriage Act, and how to end a marriage by mutual consent in accordance with the Act.
Dissolution of Marriage under the Hindu Marriage Act
If a Hindu Marriage Act marriage is legitimate and there are grounds to discontinue it, it can be ended through Judicial Separation under Section 10 or Divorce under Section 13 and Section 13B. In divorce procedures, Section 13A provides for alternative reliefs.
Judicial Separation (Sec 10):
Judicial Separation is a legal alternative to divorce that does not end the marriage. Although the parties do not live together, other marriage obligations continue. Even if they live apart and have no sexual contact, the parties are still considered husband and wife. After a Judicial Separation, it is impossible to remarry. During judicial separation, even though the parties are still married, they are not allowed to have sexual relations without the approval of the other party. If a man tries to have sexual intercourse with his wife without her agreement during judicial separation, he may face a prison sentence of up to two years and/or a fine under Section 376B of the IPC. The grounds for judicial separation are the same as the grounds for divorce under Section 13(1) of the Act, according to Section 10 of the act.
Divorce (Sec 13):
When a couple divorces, the marriage is permanently ended. The parties’ marriage duties are terminated, and they are free to remarry. The couple is no longer husband and wife. The parties can determine whether they want a judicial separation or divorce decision, and the court can issue it if they are satisfied.
Grounds for Judicial Separation and Divorce- Section 13(1):
• Adultery: Had sexual Intercourse with any other person than their spouse.
• Cruelty: Treats their spouse with cruel behavior.
• Desertion: Has left their spouse for a period of at least two years without any reasonable grounds.
• Conversion: Has converted to some other religion.
• Insanity: Suffers from any mental disorder.
• Leprosy: Suffers from an incurable and contagious disease.
• Renounced the world: Has renounced the world to unite with God or for the search of the truth,
• He has not been heard alive for seven years.
DIVORCE BY MUTUAL CONSENT (SEC13 B)
If none of the aforementioned circumstances apply but the parties decide they no longer want to be married or can no longer live together, they can seek divorce by mutual consent under Section 13B of the Hindu Marriage Act.
ESSENTIALS OF DIVORCE BY MUTUAL CONSENT
PARTIES SHOULD BE LIVING SEPARATELY:
According to Section 13(B) of the Act, the spouses must have lived separately for at least one year before filing the petition to amicably dissolve their marriage. This one-year term of separation between the parties must begin immediately before the petition is filed. In the language of Section 13B, “living separately” does not necessarily entail physically living in distinct places. Even if the parties live in the same house and share the same roof, there may still be a space between them.
If this is the case, they are not deemed to be living as husband and wife, and instead are considered to be living separately. In the case of Suresh Devi v. Om Prakash, the Humble Supreme Court held the same. It was clarified that living apart does not always imply living in distinct locations. The parties can live together but not as husband and wife.
PARTIES HAVE NOT BEEN ABLE TO LIVE TOGETHER
Although it is thought that relationships are formed in heaven, holy partnerships do not always last on Earth. Nowadays, divorce is viewed casually, and people use it as a first resort, despite the fact that the law was intended to make it a last resort. Many times, in a marriage, the partners can no longer stand each other and can no longer live happily together. That’s when they decide on a mutually agreed-upon divorce.
Unfortunately, even after attempting mediation and reconciliation and exerting several efforts, the parties are unable to live together and must file a divorce petition by mutual consent. The parties in Pradeep Pant & and v. Govt of NCT Delhi were married and had a daughter together. However, they were unable to live together due to temperamental differences and chose to live separately. Despite their best attempts, they were unable to mend their marriage and could not imagine ever living together again as husband and wife.
A Divorce case was jointly submitted, and issues including child support and custody were negotiated and agreed upon by both parties. Both parties agreed that the wife would have custody of their daughter and that the husband would have visitation privileges. Without any undue influence, both parties freely consented. The court determined that there was no possibility of reconciliation and issued a divorce judgment.
Following the filing of a petition for mutual consent divorce, the parties are given a 6-month cooling period, which can be extended up to 18 months. During this time, both parties must reflect and consider their choices.
If the parties are still unable to live together after the cooling-off period, the district judge will grant the divorce petition.
They have mutually agreed that marriage should be resolved
In some cases, the partners may decide to give their marriage another try and address their differences amicably. The parties may be able to reconcile and make their relationship work during the waiting period.
After the first motion is granted, the parties have 18 months to file the second motion, and if they do not do so within that time, both parties are presumed to have mutually withdrawn their consent.
Procedure for getting a Decree of Divorce by Mutual Consent
STEP 1: Jointly Filing a Petition
Both parties must sign and file a divorce petition in the form of an affidavit with a family court in their area.
The petition can be submitted within the local borders of the ordinary civil jurisdiction of where the marriage was solemnized or where either of the parties presently resides, thus the court’s jurisdiction should not be an issue when filing for divorce.
As previously stated, the parties to a marriage must have lived apart for at least one year prior to filing the petition.
STEP 2: FIRST MOTION
Following the filing of the petition, the parties must appear in court and make their statements. The first motion is considered to have been passed if the court is pleased and the statements are recorded, after which the parties will be allowed a 6-month waiting time before they can file the second move.
The purpose of the waiting period, as set forth in Section 13B (2) of the Act, is for the parties to reflect on and reconsider their choice. It’s a period of time set out for them to reconcile and give their marriage a second opportunity in case they change their minds. Regardless, the court may be persuaded that the marriage has reached a point of no return and that the waiting period will simply add to their pain. In that scenario, the court may waive the waiting period. If not waived, this time can last up to 18 months. If the parties still wish to divorce, they can submit a second motion at this time. Only after the 6-month waiting time has passed and before the 18-month period has passed can the second motion be submitted.
STEP 3: SECOND MOTION
Final hearings are held at this time, and statements are recorded once again. After this step, if the issues of alimony and child custody (if any) are mutually agreed upon, the divorce order is issued. By now, the marriage has come to an end, and a mutual agreement divorce has been obtained.
IS THE SIX-MONTH WAITING PERIOD MANDATORY?
Divorce is a serious affair that has the potential to damage and split families. On the other side, the parties have the opportunity to exercise their right to choose and pursue their happiness, as it is pointless to stay in a married partnership if the spouses are unhappy. Couples who file for divorce by mutual consent are granted additional time to try to save their marriage. They should seek mediation and reconciliation to resolve their differences. However, many times, these attempts are ineffective, and people end up divorcing. The parties have already lived separately for more than one year before filing for divorce by mutual consent, as required by law. As a result, there’s a slim to none chance that they’ll be able to make their marriage work again.
In the case of Amar deep Singh v. Harveen Kaur, the court found that the couple had internal conflicts and that their marriage was not ideal. The conflicts became extremely heated, and a slew of legal and criminal processes was initiated.
They agreed to settle all of their differences and file for divorce by mutual consent. The husband would have custody of their children, while the woman would receive perpetual alimony. After all of these difficulties had been resolved amicably, the parties simply desired a quick divorce and sought to avoid the waiting time. The parties couldn’t be with each other any longer, and the waiting period would only add to their misery.
With this in mind, the Hon’ble Supreme Court established that the six-month waiting period might be waived if the court is convinced that the spouses have lived separately for more than the statutorily prescribed period of at least one year and have resolved the issues of alimony and child custody (if any).
The Supreme Court further stated that the waiting period will just prolong the anguish and suffering of the parties who are no longer able to live together. The parties in another case, K. Omprakash v. K. Nalini, were unhappy in their marriage and were reportedly conducting extramarital affairs. The petitioner claimed that they had been living apart for more than a year without seeing one other and that there was no possibility of reunion.
They held each other responsible for their anguish and misery. Both claimed the other was involved in a succession of unlawful romances, but neither claimed to have ever been involved in such relationships.
There was no other choice except to file for a mutual consent divorce. The marriage had been irreversibly damaged and had reached its breaking point. Both parties wished for an immediate divorce as well as the removal of the waiting period. Observing that the parties had been living apart for long enough and that there was no chance of the marriage working again.
The Andhra Pradesh High Court ruled that Section 13B (2) of the Hindu Marriage Act should be interpreted as a guideline rather than a legal requirement.
As a result, the waiting period, which was once necessary, is now optional.
WHETHER CONSENT CAN BE UNILATERALLY WITHDRAWN?
If the parties are given a waiting period after the initial motion, they may opt to change their minds. Not all divorces are irreversible; some may be amenable to reconciliation, and the parties may opt to withdraw their agreement and give their marriage another try.
In other circumstances, the waiting period is quite beneficial since the parties have the opportunity to go to mediation and possibly change their minds. After the 18-month waiting period, the parties’ permission is regarded as withdrawn, and a divorce order is not obtained. The phrase “divorce by mutual consent” is self-explanatory; it simply indicates that the court must have the assent of both parties before issuing a divorce ruling. In Sureshta Devi v. Om Prakash, the husband fraudulently got the wife’s agreement to file for divorce. Because the wife refused to provide her assent to the divorce, she unilaterally canceled her consent.
Following the Supreme Court’s decision, we can deduce that a party can unilaterally withdraw their permission if it was not freely granted.
After the first motion is granted, the parties will have reached an agreement on a number of matters, including alimony, child custody, and other marital costs. Now, if one of the parties withdraws their permission unilaterally, the other party may incur irreparable harm. The court rules in Rajat Gupta v. Rupali Gupta that the parties’ decision to settle their differences and choose for divorce by mutual consent constitutes a binding agreement and a type of undertaking. If a party now unilaterally withdraws their permission, they will be in breach of their court-ordered commitment, committing civil contempt of court by deliberately defying a court order. If consent must be revoked unilaterally, it must be done on just and reasonable grounds, with no detriment to the other party.
As a result, consent can only be unilaterally revoked in extraordinary circumstances based on legitimate grounds.
CONCLUSION
Divorce is a severe issue that should only be utilized as the last choice; but, nowadays, many do not hesitate to get divorced. It disintegrates families, and the child of a divorcing spouse faces significant trauma as a result of growing up with separated parents.
Having said that, countries with higher divorce rates have greater women’s empowerment norms. If a person is unhappy with their marriage, they have the option to end it.
The ideal approach to divorce is by mutual consent since the parties do not have to badmouth one other in court and may voluntarily settle any difficulties and end their marriage.
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