Tuesday, February 27, 2024

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HINDU LAWMODEL ANSWER

DIVORCE BY MUTUAL CONSENT

Explain Section- 13B of Hindu Marriage Act, 1955.
Or
Discuss the remedies available for the amicable separation to a couple who got married under Hindu Marriage Act but their relationship deteriorated due to incompatibility of temperament.

In Hindu Religion, divorce is considered as a sin. Before the enactment of Hindu Marriage Act, 1955 the concept of divorce was alien to Hindus because according to Hindu religion marriage is a sacrament and it is a permanent and indissoluble union and it unites two persons of different sexes for โ€œnโ€ number of years.

But the Government of India introduced the concept of divorce in the Hindu Marriage Act, 1955 and section 13 of Hindu Marriage Act, 1955 deals with the provisions of divorce. But this section is based upon the guilt theory and according to this section if any party wants to take a divorce from the another party he has to prove fault of another party. Without proving the fault of another party, the spouse cannot take a divorce from the court of law. So, according to Section 13 it is very difficult to take a divorce.

  

Because of the difficulties and lengthy legal proceedings, sometimes spouses had to live with the another spouses and such situations made their life miserable and it affects the fundamental right given under Article 21 of the Indian Constitution that is โ€œright to live a dignified life.โ€

That is why, just to protect the fundamental right of parties, the Government of India introduced the concept of consent theory in the Hindu Marriage Act, 1955 by adding Section 13B in the year 1976. This Consent theory has made divorce very easy.

According to this theory, parties are free to dissolve their marriage whenever they want to get it dissolved. Sometimes parties voluntarily agree to solemnize the marriage but after the solemnization of marriage they realised that they have committed a mistake and they cannot live together harmoniously. If the party feels that they cannot live together then according to this theory they are free to dissolve their marriage without accusing another spouse and raising the liability of any of the spouse.

The main aim of this theory is to protect the interest of both the parties and not to humiliate any of the party. This theory is a totally different from guilt theory because this theory gives equal freedom to both the parties.

  

Section 13B of the Hindu Marriage Act, 1955 deals with the provisions of divorce by mutual consent. According to the section, if both the parties are living separately for the period of one year or more and they have decided that they cannot live together then they can file a petition with mutual consent before the district court for the dissolution of marriage on the basis of divorce by mutual consent. The parties can file a petition for dissolution of marriage under this section only if they are living separately for a period of one year or more.

After filing petition for dissolution of marriage under section 13B of Hindu Marriage Act, 1955, the court grants the cooling off period to the parties. The main aim of this cooling off period is to give time to parties for reconciliation.

According to Section 13 B(2) of Hindu Marriage Act, 1955 cooling off period may be from 6 months to 18 months. Before the expiry of 6 months i.e. cooling off period the court cannot grant the divorce. In this period the parties have to move a second motion that whether they want to take a divorce or they want to withdraw the petition for the dissolution of marriage.

According to Section 13 B(2) of Hindu Marriage Act, 1955, if parties move a second motion in between the specified time then after hearing both the parties if the court is satisfied that the parties do not want to withdraw their petition and want to take a divorce then after making enquiry that the consent of any party has not been obtained by force fraud or undue influence the court passes a decree for the dissolution of marriage on the basis of divorce by mutual consent.

Now the question arises, โ€œwhether after filing a petition by both the parties for dissolution of marriage on the basis of divorce by mutual consent, can any party withdraw his petition for the dissolution of marriage. Generally, it means after giving a consent, can any party unilaterally withdraw his consent before passing of the decree of divorce.โ€

In the leading case of Sureshta Devi vs Om Prakash (AIR 1992 SC 1904), the supreme court held that any of the party is free to withdraw his consent and if any party withdraws his consent before passing the decree of divorce then Court cannot pass a decree for the dissolution of marriage on the basis of divorce by mutual consent. The mutual consent is essential till the passing of the decree.

But in the leading case of Ashok Hurra vs Rupa Bipin Zaveri (AIR 1997 SC 1266), the supreme court granted the divorce by exercising the power given under Article- 142 of the Indian Constitution even though the wife had unilaterally withdrawn the consent as the marriage was found to be irretrievable breakdown.

Hence, it can be said that any party can unilaterally withdraw his consent before passing of the decree but to protect the interest of both the parties the Supreme court can grant the divorce on the basis of irretrievable breakdown of marriage even though one of the party has withdrawn his petition for the dissolution of marriage which has been filed under section 13 B of Hindu Marriage Act.

Now the another question which arises here is whether it is mandatory for a court to give a period of 6 months to the parties for reconciliation.
According to section 13B (2) of Hindu Marriage Act 1955 a court cannot grant a decree of divorce without giving a period of six months to the parties.

In the leading case of Anil Kumar Jain vs Maya Jain (2009 10 SCC 415), the supreme court held that if the marriage has broken down irretrievably, the supreme court can in the exercise of its extraordinary power under Article 142 of Indian Constitution pass a decree for mutual divorce without waiting for the statutory period of six months; none of the other courts can exercise such power.

But, in the leading case of Amardeep Singh vs Harveen Kaur (2017 8 SCC 746), the supreme court held that if the court before which a petition for dissolution of marriage has been filed is satisfied that it is unreasonable to wait for 6 months then that court without waiting for a period of 6 months can pass a decree of divorce.

Hence, it can be concluded that if the parties do not want to live together and they have mutually decided that they want to dissolve the marriage amicably then they can file a petition under section 13 B of Hindu Marriage Act,1955.

  

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