Divorce by Mutual Consent: The Way Ahead

Introduction

In a country like India, where marriage is considered to be a sacrament, the concept of Divorce was unknown to ancient India. In fact, Manu declared a marriage to be the highest dharma of husband and wife and indissoluble union between them. Arthashastra did recognized the concept of mutual divorce then, but only in case of unapproved form of marriage.

It was only in 1955 that Hindu Marriage Act came into existence bringing along legal recognition to the concept of divorce. Divorce under Hindu Marriage Law in India, is broadly based on Three Theories

  1. Fault Theory
  2. Theory of Divorce by Mutual consent
  3. Irretrievable Breakdown of Marriage theory

Under Fault theory, divorce can be sought by the innocent party against the party which is guilty of committing an offence. But in case both the parties are at fault, no remedy can be available.

The underlying rationale of the divorce with Mutual Consent theory is that since two persons can marry of their own free will, they should be allowed to part ways at will. Here the divorce is granted after the parties show their consent in getting separated mutually.

The theory of Irretrievable breakdown of marriage means that in case the marriage has broken down to an extent that it is impossible for the parties to cohabit together, divorce can be sought.

The Author in this paper has attempted to discuss the concept of Divorce by Mutual Consent under Section 13B of Hindu Marriage Act in light of the most recent landmark judgement by the Apex Court wherein the court had held that the six month cooling down period as enumerated under the law is discretionary and not mandatory and the trial courts, if satisfied that the possibilities of the settlement have been exhausted by the parties and the statutory conditions are fulfilled, may do away with this requirement of waiting for six month.

Under the Law of the land, to file an application under Section 13B for grant of divorce by mutual consent the parties have to satisfy the court of following three requirements:

  1. Parties have to be living separately for a period of last one year.
  2. They have not been able to live together.
  3. They have mutually agreed that marriage should be resolved

If the above said conditions are fulfilled, the parties can file a petition under Section 13B for grant of divorce by Mutual consent and the statement of parties is recorded as per the facts enumerated in the petition. In most of the cases half of the settled amount is paid by the husband to his wife at the time of presentation of the petition itself, also known as Statement of First Motion. The court as per the statutory requirement grants a period of six months as a cooling down period to let parties resume cohabitation, the failure of which will lead passing of second motion and ultimately divorce.

Whether the observance of Six Month statutory period Mandatory?

Under the precedent that had been set, there were difference of opinion as to whether the parties have to observe a six month cooling down period as a mandate before the divorce can be granted finally.

In the case of Hitesh Narendra Doshi v Jesal Hitesh Joshi, 2000 it was held that 'the provision has a definite purpose and object, i.e. giving time to the parties for introspection and reconciliation. That purpose and object stares at us so clearly by the language expressed in Section 13-B (2) of the Act robbing away the right of the court from considering the petition earlier than six months.'

Whereas in the case of Dinesh Kumar Shukla v Neeta,2005  it was held that the waiting period is directory in nature and it can be brought down from 6 months (provided the mandatory requirements of Section 13-B (1) are fulfilled) when all efforts at reconciliation failed.

In the case of Ashok Hurra v Rupa Ashok, 1997 it was held that 'in exercise of its extraordinary powers under Article 142 of the Constitution, the Supreme Court can grant relief to the parties without even waiting for the statutory period of six months stipulated in Section 13-B of the Act. This doctrine of irretrievable break-down of marriage is not available even to the High Courts which do not have powers similar to those exercised by the Supreme Court under Article 142 of the Constitution.'

Justice Adarsh Kumar Goel of Supreme Court of India on 12th of October 2017 delivered a landmark judgement as to the observance of cooling down period of 6 months in Amardeep Singh v.Harveen Kaur 2017 SC. The relevant extract from the reported judgement is as follows:

'15. We have given due consideration to the issue involved. Under the traditional Hindu Law, as it stood prior to the statutory law on the point, marriage is a sacrament and cannot be dissolved by consent. The Act enabled the court to dissolve marriage on statutory grounds. By way of amendment in the year 1976, the concept of divorce by mutual consent was introduced. However, Section 13B(2) contains a bar to divorce being granted before six months of time elapsing after filing of the divorce petition by mutual consent. The said period was laid down to enable the parties to have a rethink so that the court grants divorce by mutual consent only if there is no chance for reconciliation.

16. The object of the provision is to enable the parties to dissolve a marriage by consent if the marriage has irretrievably broken down and to enable them to rehabilitate them as per available options. The amendment was inspired by the thought that forcible perpetuation of status of matrimony between unwilling partners did not serve any purpose. The object of the cooling off the period was to safeguard against a hurried decision if there was otherwise possibility of differences being reconciled. The object was not to perpetuate a purposeless marriage or to prolong the agony of the parties when there was no chance of reconciliation. Though every effort has to be made to save a marriage, if there are no chances of reunion and there are chances of fresh rehabilitation, the Court should not be powerless in enabling the parties to have a better option.

17. In determining the question whether provision is mandatory or directory, language alone is not always decisive. The Court has to have the regard to the context, the subject matter and the object of the provision. This principle, as formulated in Justice G.P. Singh's 'Principles of Statutory Interpretation' (9 th Edn., 2004), has been cited with approval in Kailash versus Nanhku and ors 15 (2005) 4 SCC 480 as follows:

'The study of numerous cases on this topic does not lead to formulation of any universal rule except this that language alone most often is not decisive, and regard must be had to the context, subject-matter and object of the statutory provision in question, in determining whether the same is mandatory or directory. In an oft-quoted passage Lord Campbell said: 'No universal rule can be laid down as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience. It is the duty of courts of justice to try to get at the real intention of the legislature by carefully attending to the whole scope of the statute to be considered.' ' 'For ascertaining the real intention of the legislature', points out Subbarao, J. 'the court may consider inter alia, the nature and design of the statute, and the consequences which would follow from construing it the one way or the other; the impact of other provisions whereby the necessity of complying with the provisions in question is avoided; the circumstances, namely, that the statute provides for a contingency of the non-compliance with the provisions; the fact that the non-compliance with the provisions is or is not visited by some penalty; the serious or the trivial consequences, that flow therefrom; and above all, whether the object of the legislation will be defeated or furthered'. If object of the enactment will be defeated by holding the same directory, it will be construed as mandatory, whereas if by holding it mandatory serious general inconvenience will be created to innocent persons without very much furthering the object of enactment, the same will be construed as directory.'

18. Applying the above to the present situation, we are of the view that where the Court dealing with a matter is satisfied that a case is made out to waive the statutory period under Section 13B(2), it can do so after considering the following :

i) The statutory period of six months specified in Section 13B(2), in he statutory period of one year under Section 13B(1) of separation of parties is already over before the first motion itself;

ii) 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;

iii) The parties have genuinely settled their differences including alimony, custody of child or any other pending issues between the parties;

iv) The waiting period will only prolong their agony. 19. The waiver application can be filed one week after the first motion giving reasons for the prayer for waiver.'

Conclusion

It is said that every human being is different and that is the beauty of being a human but this beauty has been treated as an ugly truth by the couples in the name of temperamental/ behavioral difference between the parties.

My experience being a matrimonial lawyer has exposed me to a fact that Divorce litigation in India is used more as a tool for revenge by the parties wherein they indulge into practices of washing their dirty linen in public than a just separation.

There may be a circumstance wherein the parties after residing in together comes to a conclusion that they are too different to settle up together. In such a circumstance, parties must resort to a more subtle and civilized way of separation as compared to the one of leveling false and frivolous allegation and make each other feel humiliated.

This landmark ruling by the Hon'ble Supreme Court is a laudable step to reduce the agony of the estranged couple and to make the process of separation more smooth, prompt and easy. The doors of Courts had been knocked many times wherein one of the parties filing a petition for divorce by Mutual consent withdrew his/her consent at the time of final motion, taking things to halt. This not only wasted the time and resources of the judicial system whose already overburdened with the cases but also caused agony to the parties. This judgement carved a way to mitigate the agony by making a provision of filing a waiver application after one week after the first motion giving in the reasons for the prayer of waiver and get the second and final motion passed without waiting in for the compulsory statutory period of 6 months.

This judgement by Hon'ble Supreme Court is a welcome and laudable step towards making the justice delivery system more just, effective and efficient.

 

Nishtha Malhotra 
on 24 October 2017
Published in Family Law
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