Marriage is a sacrosanct bond between two parties however this bond between two parties have started weakening in todays era and every other day we see marriages failing because of one reason and another. The parties want divorce from each other and the stress begins when one party refuses to give divorce to the other party and doesn’t want to even live together. However for those parties who want to separate in an amicable way, for them as per the Hindu Marriage Act, 1955, the petition of a ‘Mutual Divorce’ can be filed of the ground that you and your spouse are encountering difficulties and have decided to part ways legally on agreeable terms and conditions. The process though seems simple but a closer look at the judicial trend would show that though it is a simple and straight process yet there are problems faced in executing this simple process as well.

Procedure under the Hindu Marriage Act for Divorce by Mutual Consent

Under Hindu Marriage Act, both the husband and the wife have been given the right to dissolve the marriage by a decree of divorce in grounds specified in Section 13. Section 13 B specifically deals with Divorce by Mutual Consent and the conditions required therein is as follows:-

1. Husband and wife have been living separately for a minimum period of one year or more,
2. That they are unable to live together, and
3. That both husband and wife have mutually agreed that the marriage has totally collapsed. Hence marriage should be dissolved.

Under these circumstances, a Divorce by Mutual consent can be filed by either party with the consent of the other party. The said petition can be filed at a place where the parties last resided together as husband and wife or where the marriage was solemnised or where the wife is currently residing.

PROBLEMS FACED AND SOLUTIONS

The divorce by mutual consent sounds to be a very simple and non-tedious process yet the Supreme Court and other Courts in India have faced certain problems in this procedure which has been solved by them by laying down decision which are being followed by all the Courts in India. Let us analyse the problems faced and solutions provided by the Courts.

1. Parties resiling/withdrawing consent at any stage provided under section 13 B of Hindu Marriage Act: The Supreme Court was faced with a situation whereby one of the parties withdrew its consent before passing the decree of divorce. In the case of Hitesh Bhatnagar vs. Deepa Bhatnagar AIR 2011 SC 1637 and the Hon’ble Apex Court categorically held that the consent can be withdrawn at any time even after 18 months but prior of passing of decree of dissolution. It was opined that the mandatory period of 18 months is provided by the legislature with the intention to give time and opportunity to the parties to reflect on their move and seek advice from relations and friends. The section does not provide for a situation whereby if one of the parties have changed their mind after filling for divorce by mutual consent then what should be the recourse? This question was first answered by the Supreme Court in the case of Smt. Sureshta Devi v. Om Prakash, (1991) 2 SCC 25, and relying upon this decision, the Court in the Hitesh Bhatnagar case (supra) held that the consent can be withdrawn any time before the decree is passed by the Court.
   
2. Undue pecuniary benefit taken after first motion and withdrawal of consent thereafter: Various High Courts have faced a situation wherein after filling for mutual consent for divorce and passing of first motion, the husband has paid the party money as agreed in the terms of settlement between the parties however the wife thereafter refused/withdrew her consent for mutual divorce. The Rajasthan High Court in the case of Anil Khatwani v. Nishtha has held that the wife cannot be allowed to take a U-Turn for harassing the husband for paying more amount in the form of permanent alimony than the one initially agreed upon and acted upon by the parties. Hence such withdrawal of consent after the parties have acted upon the terms was analysed and allowing the divorce on mutual consent terms held that consent in such cases continued due to acceptance of the money. The Bombay High Court as well in the case of Arun Patil v. Sandhya has held that once the consent terms have been acted upon by either of the parties, consent cannot be withdrawn unilaterally as that would amount to cruelty.
   
3. Whether the husband can seek refund in the situation provided under para 2 above? It has been held by the Punjab and Haryana High Court in the case of Sukhdeep Kaur v. Ravinder Pal Singh 2014 (37) RCR (Civil) 9 that the Husband is entitled to get back the amount given by him in furtherance of the permanent settlement reached between the parties at the time of mutual consent for divorce.
   
4. Contempt proceedings can be initiated: The Supreme Court has held that if the parties to the petition filed for divorce by mutual consent do not abide by the terms of the compromise between them then in such cases they are liable to be prosecuted for contempt.

Hence though the divorce by mutual consent is an easy way out from the marriage yet the solutions are also available. Hiring a good advocate for drafting the terms of settlement is important in such circumstances for speedy disposal of the case.

STEP-BY-STEP PROCEDURE FOR DIVORCE BY MUTUAL CONSENT

Step 1: Petition to file for divorce: Firstly, a joint petition for dissolution of marriage for a decree of divorce is to be presented to the family court by both the spouses on the ground stating that they have not been able to live together and have mutually agreed to dissolve the marriage or they have been living separately for a period of one year or more. This petition will, then, be signed by both the parties.

Step 2: Appearing before Court and inspection of the petition: Both the parties will have to appear before the family court after the filing of the petition along with their appointed lawyer. At this stage, the Court will analyse the averments of the petition along with all the documents presented in the court. This step is important because once the Petition is presented the Court makes an effort for reconciliation between the spouses, however, if this is not possible, the matter proceeds for further follow-ups.

Step 3: Passing orders for a recording of statements on oath: After the petition is scrutinized by the Court and it satisfies, it may order the party’s statements to be recorded on oath. The statements are to the effect that both the parties have out of their own free will and without any coercion or mis-presentation have decided to part ways and dissolve the marriage between the parties.

Step 4: First Motion is passed and a period of 6 months is given before the Second Motion: Once the statements are recorded, an order on the first motion is passed by the Court. After this, a six months period is given to both the parties to a divorce, before they can file the second motion. This 6 months’ time is granted to the parties before the final hearing of the petition and this is known as “cooling off period” which as per law is mandatory to be undergone. Thereafter the parties have to appear and get their statements recorded before the Family Court for the second motion giving their clear minds of dissolving the marriage completely and showing their intent that no reconciliation can take place between the parties. The maximum period to file for a second motion is 18 months from the date of presentation of the divorce petition in the family court.

Step 5: Second Motion and the Final Hearing of petition: Once the parties have decided to go further with the proceedings and appear for the second motion, the case is proceeded with the final hearings.

Waiver of Six months: when the marriage has completely broken down i.e. there is irretrievable breakdown of marriage between the parties and the Court has after analysing the facts and circumstances of the case concluded that there cannot be any reconciliation between the parties, then the mandatory period of 6 months can be waived off. This has been held by the Supreme Court for the first time in the case of Amardeep Singh vs. Harveen Kaur and the same is being followed by various High Courts and the Supreme Court as well in other cases now coming up before the court for waiving off the cooling off period. Therefore, the parties who have genuinely settled their differences including alimony, custody of the child or any other pending issues between the parties, these six months can be waived off. It has also been the view of the Court that if the waiting period will only extend their sufferings, the six months can be waived off.

Step 6: Decree of Divorce: If the Court is satisfied that both parties have given consent and there shall are not any differences left in the matters related to contentions regarding alimony, custody of a child, maintenance, property, etc. and a settlement has reached between the parties with free will and consent, the that there cannot be any possibility of reconciliation and cohabitation, it can pass a decree of divorce declaring the marriage to be dissolved. The divorce becomes final once the decree of divorce has been passed by the court.