BY MUTUAL CONSENT
DIVORCE by Mutual Consent, as the name suggests, means when both Husband and wife agree amicably amongst themselves that they cannot live together anymore and that the best solution is to Divorce, without putting forth any allegations against each other, in the court of law, then such a Divorce petition presented jointly before the honourable court, is known as mutual consent Divorce.
The word DIVORCE was considered to be the most, TABOO, UNTHOUGHT word in the late 1970s and 1980s, where from personal experiences I have seen, what a woman undergoes in the aftermath of such divorces. She will be judged otherwise for no fault of hers. The parents who have had other children to be married, will pressurise the girl to adjust in her married home, despite the fact that, their daughter has been grossly ill-treated by her in-laws, with scant regard to her identity, as a person. Sometimes, the experiences that one undergoes while in the process of a divorce, or the afters, leaves an unforgettable, memory in one’s life.
Then divorces happened in the upper strata, a rarity though, with the middle class women were often forced to put up with all the experiences of a bad marriage, while the women in the modern and economically sound background had the choice of whether to be in such marriages or not! Then in 1976, Hindu Marriages Act (1955) was amended, the divorce by mutual consent came to save, some bad and irretrievable marriages. It’s with agony and pain that parents chose this medium of way out, unable to see their daughters suffer. They thought that their daughters will at least be safe with them, with no threat to their lives. It is noteworthy to say that, parents chose this as an extreme step, after trying out all other options to make the marriage work and survive. The foremost reason being the STIGMA, attached to POST-DIVORCED life.
This being the scenario till the late 1970’s the MUTUAL CONSENT came into enactment by an amendment made in 1976, in HMA 1955, to save parties from marriages, which were already doomed, irretrievable, unliveable in this Institution. This was brought to ease the single sided divorce petition which was in vogue then, also was very time consuming and frustrating.
Section 13B (1) in The Hindu Marriage Act, 1955
(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 solemnised before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 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.
Section 13B (2) in The Hindu Marriage Act, 1955
(2) On the motion of both the parties made no 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 solemnised 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. The period of 6 to 18 months provided in section 13B is a period of interregnum (Period of Interregnum- The petition should not have been withdrawn within six months after the date of the presentation of the petition and not later than eighteen months after the said date) which is intended to give time and opportunity to the parties to reflect on their move. In this transitional period the parties or either of them may have second thoughts.
(ii) The period of living separately for one year must be immediately preceding the presentation of petition. The expression “living separately” connotes 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.
(iii) The period of six to eighteen months’ time is given in divorce by mutual consent as to give time and opportunity to the parties to reflect on their move and seek advice from relations and friends. Mutual consent should continue till the divorce decree is passed. The court should be satisfied about the bona fides and consent of the parties. If there is no consent at the time of enquiry the court gets no jurisdiction to make a decree for divorce. If the court is held to have the power to make a decree solely based on the initial petition, it negates the whole idea of mutuality. There can be unilateral withdrawal of consent. Held, that since consent of the wife was obtained by fraud and wife was not willing to consent, there could be unilateral withdrawal, of consent.
When a petition for mutual consent in given in the court, the hearing would invariably come only after 6 months, that’s when it gets admitted. The verdict of which would take from the admission of petition which is 6 months after filing and within 18 months from the date of admission. As a part of routine, counselling is given in the Court Campus, by Family Court counsellors to check if any possibility of reconciliation is there. The report is then sent and the verdict is passed after checking if they still want to go ahead with the divorce. This is the normal procedure.
But now the latest, has brought about a further amendment in cases of exceptions, where, the said mandatory separation period of one year before the filing of the petition for MUTUAL CONSENT, the waiting time for the six months after filing the petition will be waived. The Court held that the period mentioned in Section 13B (2) was not mandatory, but directory, that it will be open to the court to exercise its discretion in the facts and circumstances of each case, where there was no possibility of parties resuming cohabitation and there were chances of alternative rehabilitation.
It was held, where the Court dealing with a matter was satisfied that a case was made out to waive the statutory period under section 13B (2) it can do so after considering the following:
1. The statutory period of six months specified under this section, in addition to the statutory period of one year of separation of parties is already over before the first motion itself;
2. All efforts for mediation/conciliation by the family courts Act to reunite the parties have failed and there is no likelihood of success in that direction by any further efforts;
3. The parties have genuinely settled their differences including alimony, custody of child or any other pending issues between the parties;
4. The waiting period will only prolong their agony.
That is when the couples have already been out of each other’s society, for more than a year, which is 18 months, before filing a petition for divorce by mutual consent, the six months of waiting period is waived, so that decree can be gotten much in advance. That is, once a fresh application for mutual consent is applied, they can quote the separation period of over 18 months is already existing and apply for a waiver of the six months’ time after the petition for admission and ask for an advancement to give an order for the same, when there is no possibility of co-existence.
This came to light by a judgement passed by Supreme Court, in AMARDEEP SINGH VS HARVEEN KAUR, the apex court had a chance to interpret the law regarding mandatory “cooling off” period in cases of divorce by mutual consent. In the present case, the parties were living separately for past 8 years and arrived at a settlement for all the disputes between them before filing the petition for divorce. It was sought from them, that since the parties have already arrived at settlement, there is no need for them to wait for another 6 months as required. The waiver application can be filed one week after the first motion giving reasons for the prayer for waiver. Since they had already been estranged for 8 years, the waiver of the waiting period for the second motion will be at the discretion of the concerned Court.
Our Indian Family Courts try their best possible to save any marriages, especially when children are involved as they need both the parents. But in extreme cases the court has to decide, whether it would be better for the couples in question to live separately divorced for their own good and for the children. The reasonableness of the divorce by this petition is always entertained, maintained, but not for trivial reasons. The trend has become, to knock the Court doors for all small and petty issues, to satisfy one’s ego. The Court also advises the parties to the divorce accordingly and try their best to save marriages from breaking.
LET DISCRETION PREVAIL TO GET DIVORCE UNDER THIS PETITION, WHEN THE SITUATION IS VERY WORSE FOR TWO PEOPLE TO LIVE UNDER THE SAME ROOF, BUT LET THIS NOT BE THE LEEWAY TO GET DIVORCES, JUST LIKE BUYING GROCERIES OR FOR TRIVIA……
VIJAYASHREE RAMESH, CHENNAI BASED ADVOCATE.