Divorce by mutual consent – conditions and procedure

Question: What are the conditions for divorce by mutual consent of husband and wife? What procedure has to be followed for obtaining divorce by mutual consent?

Answer: Section 13-B of the Hindu Marriage Act, 1955 (as amended by the Amendment Act No. 68 of 1976) lays down the relevant provisions for divorce by mutual consent of husband and wife, i.e., by mutual consent of both parties to the marriage. It is pertinent to point out that the Hindu Marriage Act is applicable basically to a person who is Hindu, Buddhist, Jaina or Sikh by religion.

A similar provision for divorce by mutual consent exists also in Section 28 of the Special Marriage Act, 1954. This Act is basically an enabling statute, i.e., it applies only when two persons voluntarily choose to marry under the provisions of this Act. Generally, this Act is used when two persons want to perform a civil marriage or the so-called “court marriage”. If an inter-religious or inter-community marriage has to be performed, then it can be performed under the Special Marriage Act.

Since both these sections under the Hindu Marriage Act and the Special Marriage Act are similar, I am reproducing Section 13-B of the Hindu Marriage Act that provides for divorce by mutual consent:

“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, 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petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been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.”

It may be pertinent to mention that Section 13-B was inserted in the Hindu Marriage Act in 1976 by way of the Amendment Act No. 68 of 1976, which means that this provision did not exist before 1976. However, in spite of this, a petition for divorce by mutual consent can be filed even for those marriages that were solemnized prior to 1976, provided other conditions are satisfied.

In the light of the above legal provision, let us now understand the nuances of divorce by mutual consent.

What is divorce by mutual consent?

As the name itself suggests, divorce by mutual consent means a decree of divorce obtained when both parties to the marriage, i.e., both husband and wife, agree for divorce in an amicable manner, with no party opposing it. A joint petition is filed together by both parties.

What are the conditions for making joint petition for divorce by mutual consent?

Following conditions must be satisfied for making a joint petition for divorce by mutual consent:

1. That husband and wife have been living separately for a period of one year or more.
2. That they have not been able to live together.
3. That both husband and wife have mutually agreed that the marriage should be dissolved.

Thus, where the marriage has completely failed and both parties feel that it is not possible to live together, and where the aforesaid 3 conditions are satisfied, both the husband and wife can file a joint petition before the District Court for dissolution of marriage, i.e., for divorce by mutual consent, under the provisions of the aforesaid Section 13-B of the Hindu Marriage Act.

What is the procedure for obtaining divorce by mutual consent?

1. If all the aforesaid conditions are satisfied, both husband and wife can file a joint petition before the District Court. This petition should be signed by both parties to the marriage. Such joint petition is usually required to be filed in the District Court at the place where the marriage was solemnized or where both parties lived together last.
2. Upon filing of the joint petition, statements of husband and wife will be recorded by the Court.
3. Thereafter, a period of at least 6 months is given by the Court. This is the legal requirement under Section 13-B(2) of the Hindu Marriage Act. During this period of 6 months, husband and wife can make efforts for reconciliation.
4. If they arrive at a compromise within this period and decide to resolve their differences and decide to live together again, they can withdraw the joint petition filed by them.
5. In fact, even one of the parties to the marriage, i.e., either husband or wife, can also withdraw his or her consent to the joint petition for divorce by mutual consent.
6. However, if both parties are not able to resolve their differences and make a second motion after 6 months (but, it has to be before the period of 18 months), the Court will hear both parties.
7. After hearing both parties in this manner, and after making such inquiry as it thinks fit, the Court, on being satisfied that a marriage has been solemnized and that the averments made in the joint petition are true, shall pass a decree of divorce declaring the marriage to be dissolved.
8. The marriage will stand dissolved from the date of such decree passed by the Court.

Thus, divorce by mutual consent is advisable where it is impossible for the husband and wife to live together any more and where they have come to the conclusion by mutual agreement that it is better to dissolve the marriage. This process avoids the allegations made by either party against the other, which are usually seen in most matrimonial disputes. Divorce by mutual consent is a comparatively faster and easier method of getting the marriage dissolved when both husband and wife mutually agree to get the marriage dissolved. At the time of such mutual agreement, they should also amicably settle other issues, such as custody of children, disposal of common property, the alimony to be paid, etc.