The Hindu Marriage Act, 1955 is the umbrella legislation governing all Hindus in India. Sec. 13-B of the act provides for Divorce by mutual consent which acts as a matrimonial remedy. In today’s era, with matrimonial conflicts on the rise, Divorce by mutual consent acts as the easiest remedy available. Divorce by mutual consent is marked by the condition that both the parties to the marriage agree to dissolve their marriage by mutual consent.
However, there are some pre-requisites for the same. They are:
- Both the spouses should file the petition jointly;
- The spouses have been living separately for more than a year preceding the date of filing petition;
- They have not been able to live together
- They mutually agree to dissolve the marriage
After filing the petition, parties may withdraw from the petition. If not withdrawn, the court may, after 6 months and before 18 months pass a decree for divorce, after hearing the parties.
In Raj Vinod v. Smt Durga Devi, 2002, where the parties reached a consensus that they can’t happily live together as husband and wife since their separation was for a substantial period of sixteen years. As a result of the consensus, they decided t present joint divorce petition and divorce by mutual consent was thus allowed.
Whether one spouse can withdraw unilaterally petition of Divorce by Mutual Consent?
As stated above, provision was made to withdraw the petition for divorce by mutual consent. In the case of Sureshta Devi v. Om Prakash, the Supreme Court settled the controversy which many previous judgements by the High Court created and held that any one of the parties to the petition could withdraw the petition unilaterally.
Another landmark judgement in this respect is Ashok Hurra v. Rupa Bipin Zaveri AIR 1977 SC 1266, The Supreme Court has observed that where there is unilateral withdrawal of the divorce petition, the court has discretionary power to proceed with the case and to grant divorce decree if the evidence was in favour of the petitioner by overriding the general principle ‘after submission of petition, if any of the spouses withdraws the consent, the Court will not sanction divorce on petition before it.’
Jurisdiction of the court in this respect extends to:
- place Where both the parties last lived
- Where the marriage was solemnised
- Where the wife is residing currently
The Court generally enquires in aspects like
- whether there was a valid marriage existing between the parties
- whether the parties were really living separately for a year preceding the petition
- hether the facts and statements of the petition are true and whether the conditions of Sec 23 of the Act are fulfilled
Maintenance in such cases is to be decided by both the parties through mutual consent.
To conclude, divorce by mutual consent is the easiest way to obtain a divorce without years of court proceedings or long and complicated arguments. Many people prefer the same in today’s generation.
By Maahi Mayuri
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