Divorce By Mutual Consent Under Hindu Law

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Divorce means termination of a marriage between husband and wife. It is an action that ends the responsibilities and duties between the legally wedded couple. Cancellation of marriage not only ends the burden but also comes to an end of the relationship before the death of any spouse. As per law, there are various grounds of divorce given under Section-13 of the Hindu Marriage Act, 1955. Section-13(b) of the act states divorce by mutual consent or Mutual divorce which means both husband and wife are not willing to stay together and they mutually want to dissolve the marriage. This ground of divorce occurs when both of them are living separately or wants to live individually without the intervention of another. This is one of the best grounds of divorce as it saves a lot of time and money for both parties but any consent which is taken by fraud or force will not be regarded as mutual consent. Both the parties should be ready to part ways and no consent must be given in any kind of force. The divorce can be granted if both the parties have been living separately for one year or more or living in the same residence but not living as a couple. The only key which needs to be satisfied is that they mutually agreed to cancel their marriage and there is no scope of adjustment.

Forex. In Sureshta Devi v. Om Prakash, the Supreme Court stated that the expression ‘living separately’ indicates not living like husband and wife. It has no reference to the place of living. The parties may live under the same roof and yet they may not be living as husband and wife. The parties should have no desire to perform marital obligations.

Also Read: Can the six months waiting period be waived in Divorce by Mutual Consent?

Theories of divorce

  1. Fault or guilt theory

This theory states that any partner can ask for a divorce if the other spouse found guilty of any matrimonial offense which includes rape, desertion, cruelty, adultery, etc. The essential is that one partner is guilty and the other must be innocent.  The innocent spouse files the divorce petition against the other just like a normal divorce. 

  1. Irretrievable breakdown theory

According to this theory, the divorce can be granted if there is any strong reason for it. The marriage cannot take place after various attempts and is gone beyond the possibility. 

  1. Mutual consent theory

In this theory, both the parties amicably agree to dissolve the marriage. Both husband and wife want to get rid of each other and they jointly file the divorce petition, not like a usual case where one party file the petition against another. Mutual divorce means where both of them mutually want to live separately and not with each other.

The procedure of divorce by mutual consent

The parties file the divorce petition in the court for the dissolution of marriage. The petition must be filed in the family court of the place where the marriage was held or where both husband and wife lived together. The divorce petition has two motions i.e. 1st motion and 2nd motion. Under the 1st motion, the divorce lawyer makes affidavits, a petition signed by both the parties as divorce by mutual consent is always a joint petition and they must also state all the reasonable statements for taking divorce. After filling out the divorce petition court gives a period of 6 months to both parties to rethink the matter. This time period given by the court is called a cooling-off period. Either party can withdraw the petition within 6 months from the date of presentation of it states that they don’t want a divorce through mutual consent. The petition can also be withdrawn when either of the party is ready to change and modify the marriage for a better future. But in situations where both husband and wife are sure about the divorce and want the marriage to end soon either of them can request the court to rush the process and not wait longer.

In the case Amardeep Singh v. HarveenKaurthe Supreme Court made a notable observation by holding that 6 months cooling off period as expected is not mandatory.

Now the 2nd motion in which after the expiry period of 6 months given by the court another petition is filed by the divorce lawyer with the same process followed in 1st motion. After the proceedings and other formalities, the court passes an order of decree of divorce as the final order.

In SmrutiPahariya vs. Sanjay Pahariya, the Apex Court held that consent cannot be presumed by the absence in Court of one spouse at the end of 6 months cooling off period in the mutual consent divorce petition. Before passing a decree of divorce, the court remains under an obligation to satisfy itself as to whether the consent given by the parties is a valid one.

There are certain pros and cons of every aspect. Divorce by mutual consent is an amicable settlement between husband and wife in which both of them agree to come to a conclusion of divorce mutually. The mutual agreement of divorce makes it simpler and easier for the Judge to pass an order and the parties don’t have to give an explanation as to why they are divorcing. As compared to other grounds of divorce mutual consent is the best grounds as it saves money for both the parties as well as time since it takes less time to reach the conclusion and where both parties voluntarily agree to cancel the marriage. Usually, the marriage is dissolved for inappropriate reasons but the essential is that they mutually agree to split.

Mutual Divorce in India via video conferencing?

Conclusion

Marriages are made in heaven but sometimes two souls are not made for each other hence no other alternative is left except separation. Our law gives everyone the right to life and liberty which states that anyone can live in any manner they want to whether in a wedded life or without it. In earlier times it was difficult for people to raise a voice for themselves especially for women but now everybody fights for their rights and the main factor are literacy. Under Hindu law, the parties can dissolve the marriage on the basis of the theories of divorce also. Further, it is the main ground available for the couple to dissolve the legally wedded marriage commonly. 

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The content of this article is intended to provide a general guide to the subject matter. Best Divorce Lawyer advice should be sought about your specific circumstances.