Introduction 

• Under Hindu Law marriage is a sacrament and an eternal union. 
• However, the grounds of divorce were introduced by the Hindu Marriage Act, 1955 (HMA).  
• Divorce by mutual consent is one of the grounds of divorce that was introduced later by way of an amendment in the HMA.  

Divorce By Mutual Consent 

• Divorce by mutual consent falls under no fault theory where the parties do not have to prove fault on the part of another person. 
• Under Hindu Law divorce by mutual consent was added by Section 13B which was included by way of Amendment by the Marriage law (Amendment) Act, 1976 and it came into force from 25th May 1976.   

Section 13 B of Hindu Marriage Act, 1955 

• For the purposes of divorce by mutual consent two petitions must be jointly filed by the parties. 
• As per Section 13B (1): 
  • A joint petition for dissolution of marriage shall be presented before the District Court. 
  • Whether the marriage was solemnized before or after commencement of Marriage Laws (Amendment) Act, 1976. 
  • The parties should have been living separately for a period of one year or more. 
  • The petition should provide that they have not been able to live together, and they have mutually agreed that the marriage should be dissolved. 
• Section 13 B (2) provides for second motion: 
  • When should it be filed? 
    • Not earlier than six months after the presentation of the first motion and not later than eighteen months after the said. 
    • If the petition is not withdrawn in the meantime. 
  • How is the decree of divorce passed? 
    • After hearing the parties and after making such enquiry as it thinks fit 
    • That the marriage has been solemnized and that the averments in the petition are true 
    • Pass a decree declaring marriage to be dissolved with effect from the date of decree 
• The purpose of prescribing the above procedure is to give parties some period of togetherness before separation. 
• Marriage is a very important part of any individual’s life and therefore before the marriage is dissolved by mutual consent the parties must be given some reasonable time to reflect on their move to dissolve the marriage. 

Withdrawal of Consent Under Section 13 B 

• Hitesh Bhatnagar v. Deepa Bhatnagar (2011): 
  • The Court is bound to pass a decree of divorce declaring the marriage of the parties to be dissolved if the following conditions are met: 
    • A second motion of both the parties is made not before 6 months from the date of filing of the petition as required under subsection (1) and not later than 18 months 
    • After hearing the parties and making such inquiry as it thinks fit, the Court is satisfied that the averments in the petition are true; and 
    • The petition is not withdrawn by either party at any time before passing the decree; 
• Smruti Pahariya v. Sanjay Pahariya (2009): 
  • It is only on continued mutual consent of the parties that a decree of divorce under Section 13 B can be passed. 
  • The court has to be satisfied about the existence of mutual consent between the parties on some tangible materials which demonstrably disclose such consent.
    

Cooling off Period  

• Under Section 13 B if the petition is not withdrawn post 6 months (and not later than 18 months) from the date of presentation of petition the Court may pass a decree of divorce. 
• Thus, the parties are given a cooling off period of 6 months. 
• The question that is posed is whether the cooling off period is mandatory or directory? 
  • Amardeep Singh v. Harveen Kaur (2017): 
    • A 2- judge bench comprising of Hon’ble Adarsh Kuamr Goel, Justice and Hon’ble Uday Umesh Lalit, Justice held that in determining if the period is directory or mandatory the language alone is not decisive. Rather the Court has to give regard to the context. 
    • The Court held that the cooling off period can be waived off only after considering the following factors: 
      • the statutory period of six months specified in Section 13B(2), in addition to the statutory period of one year under Section 13B(1) of separation of parties is already over before the first motion itself; 
      • all efforts for mediation/conciliation including efforts in terms of Order XXXIIA Rule 3 CPC/Section 23(2) of the Act/Section 9 of the Family Courts Act to reunite the parties have failed and there is no likelihood of success in that direction by any further efforts; 
      • the parties have genuinely settled their differences including alimony, custody of child or any other pending issues between the parties; 
      • the waiting period will only prolong their agony. 
  • Shilpa Shailesh v. Varun Sreenivasan (2023): 
    • A Constitution Bench held that Supreme Court can exercise power under Article 142 (1) of the Constitution and grant divorce by mutual consent dispensing with the waiting period prescribed under Section 13 B. 
    • The Court held that the cooling off period is not to stretch the already disintegrated marriage or to prolong the agony of the parties. 
    • The Court held that apart from the factors mentioned in the case above the Court should also ascertain whether the parties have freely on their own accord arrived at a genuine settlement that took care of alimony, maintenance and other matters. 
    • Thus, the Court held that Section 13B does not put any fetters on the powers of the Court to grant a decree of divorce by mutual consent. 

Conclusion 

Divorce by mutual consent is one of the ways by which the parties can end a marriage mutually without showing any fault on the part of the other party. Even the Supreme Court has acknowledged that it is better to bring a marriage to an end which exists only in fiction. Section 13 B of Hindu Marriage Act, 1955 provides a statutory remedy to bring the marriage to an end by mutual consent.