Date : 03 Jan, 2023
Post By Vishal Kumar
Divorce by Mutual Consent under Hindu Law?
The Indian Christian Marriage Act, Hindu Marriage, the Muslim Marriage Act, and the Special Marriage Act are some of the several marriage-related laws in India. While these laws state the terms of marriage, they also state what should be done if the married couple wishes to separate or get a divorce. Getting a divorce should only be done as a last resort because it is a serious matter. It causes families to split up, and the child of the separated couple must endure significant trauma as they grow up with separated parents. Having said that, if a couple is unhappy in the marriage, they should be able to exercise this right of theirs. Here, we will explain how the process of divorce works under the Hindu Marriage Act.
Marriage dissolution under the Hindu Marriage Act
If a marriage sanctified by the Hindu Marriage Act, it can be ended through either divorce under Section 13 and Section 13B or judicial separation under Section 10; Section 13A provides additional relief in divorce proceedings.
Divorce
The marriage is permanently ended in the case of a divorce. The parties are free to remarry and free of all marital obligations. The parties involved do not remain a couple, or partners. The court may grant the decree of judicial separation or divorce depending on what parties opt for, and the parties are free to choose, however the court should be satisfied with the grounds for the divorce.
Judicial Separation
The alternative to divorce is judicial separation, but it does not end the marriage. Even though the parties may live apart and do not have a sexual relationship, they are still married. In the event of judicial separation, one cannot remarry.
During a judicial separation, the parties cannot engage in sexual activity without the other party's consent, even if they are still spouses. Under IPC Section 376B, if a man tries to have sex with his wife during a judicial separation without her consent, he could face up to two years in prison and/or a fine.
Grounds for Divorce
· Adultery: has sexual intercourse with another person, who is not their spouse.
· Cruelty: exhibits cruel behaviour towards their spouse. This can be physical, verbal or emotional.
· Desertion: has been separated from their spouse for at least two years without any good reason.
· Insanity: suffers from any mental disorder.
· Leprosy: has a disease which is incurable and contagious.
· Renounced the world: has renounced the world in order to unite with God or to seek the truth.
· Hasn't been seen in person in seven years.
Divorce by mutual consent can be sought if none of the aforementioned grounds apply but they decide that they do not want to remain married or cannot live together. This is under Section 13(B) of the act.
Essentials of divorce by mutual consent
Parties should be living separately
According to the Act's Section 13(B), prior to filing a petition to mutually dissolve a marriage, the spouses must have been living separately for at least one year. However, this does not necessitate that they reside in distinct locations. In the court case of Sureshta Devi v. Om Prakash, the Supreme Court made it abundantly clear that living apart from one another does not necessarily mean living in different locations. The parties may live together, but they may not be married.
2. Parties have cannot live together
In many marriages, the spouses are unable to live happily together. When they decide to divorce by mutual consent, a cooling period, which can last up to 18 months, is granted to the parties following the filing of a petition for divorce. The parties must reflect and consider their choices during this time. The district judge must approve the divorce petition if the parties are still unable to live together after the cooling period.
3. They have mutually decided that marriage should be resolved
The parties may decide to give their marriage another chance and come to an agreement on their own. The parties may occasionally be able to reconcile and make their relationship work during the waiting period. The parties have 18 months to file a second motion after the first one is approved. If they do not do so within those 18 months, both parties are considered to have mutually withdrawn their consent.
How to get a decree of divorce by mutual consent
Step 1: Jointly submitting a petition
An affidavit for a divorce must be signed by both parties and submitted to their local family court. The petition can be filed within the limits of the ordinary civil jurisdiction of the place where the marriage was sanctified or where either party currently resides, hence the court's jurisdiction should not be a major concern when filing for divorce. Prior to submitting the petition, the parties in the marriage must have been living apart for at least one year.
Step 2: First Motion
The parties are required to make statements in front of the court following the filing of the petition. If the court is fulfilled and the proclamations are recorded, the first motion is said to have been passed, following which a waiting period of 6 months will be given to the couple before they can document the second motion.
Step 3: Second Motion
The final hearings take place at this point, and statements are recorded once more. After this step, the divorce decree is issued if the issues of alimony and child custody (if any) are agreed upon by both parties. By now, the marriage has come to an end, and the divorce was granted by mutual consent.
Can consent be unilaterally withdrawn?
Divorce by mutual consent is legally binding and a type of undertaking between the parties. By wilfully disobeying an undertaking, a party would be guilty of civil contempt of court in the event that they unilaterally withdraw their consent from the agreement. However, in order for the court to grant the divorce decree, both parties must consent freely. In the case of Sureshta Devi v. Om Prakash, the husband obtained the wife's consent to file for divorce fraudulently. The wife unilaterally revoked her consent because she was unwilling to consent to the divorce. As a result, consent can only be unilaterally revoked in exceptional circumstances based on reasonable grounds.
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