Divorce by mutual consent is the legal term for a separation in which both spouses agree to end the marriage. If both spouses agree to divorce, either can file for it. In terms of ending a marriage, this is the most respectful option.
When can cooling off period of 6 months be waved by the court?
In Amardeep Singh v. Harveen Kaur : AIR 2017 SC 4417, the Hon’ble Supreme Court considered the question whether the minimum period of six months stipulated under Section 13B(2) of the Hindu Marriage Act, 1955 for a motion for
passing decree of divorce on the basis of mutual consent is mandatory or directory and whether such period can be relaxed in exceptional situations.
The object of the provision contained in Section 13B of the Hindu Marriage Act, 1955 was considered by the Apex Court and it was held as follows:
“The object of the provision is to enable the parties to dissolve a marriage by consent if the 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.”
In Amardeep Singh’s case, after analyzing the provision contained in Section 13B(2) of the Hindu Marriage Act, 1955, the Hon’ble Supreme Court further held that where the Court dealing with a petition of mutual consent divorce is satisfied that a case is made out to waive the statutory period under Section 13-B(2), it can do so after considering the following:
- the statutory period of six months specified in Section 13-B(2), in addition to the statutory period of one year under Section 13-B(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 the child, or any other pending issues between the parties;
- the waiting period will only prolong their agony.
The waiver application can be filed one week after the first motion giving reasons for the prayer for waiver and if the above conditions are satisfied, the waiver of the waiting period for the second motion will be in the discretion of the concerned Court. The period mentioned in Section 13-B(2) is not mandatory but directory and it will be open to the Court to exercise its discretion in the facts and circumstances of each case where there is no possibility of parties resuming cohabitation and there are chances of alternative rehabilitation.
When can period of 1 year for filing divorce by mutual consent be waived?
For the purpose presenting a petition under Section 13-B of the
Hindu Marriage Act before expiry of one year, Section 14 of this Act would
be relevant, which reads as under:-
“14 No petition for divorce to be presented within one year of marriage.
(1) Notwithstanding anything contained in this Act, it shall not be competent for any court to entertain any petition for dissolution of a marriage by a decree of divorce unless at the date of the presentation of the petition one year has elapsed since the date of the marriage:
Provided the court may, upon application made to it in accordance
with such rules, as may be made by the High Court in that behalf, allow a petition to be presented, before one year has elapsed, since the date of the marriage on the ground that the case is one of exceptional hardship to the petitioner or of exceptional depravity on the part of the respondent, but if it appears to the court at the hearing of the petition that the petitioner obtained leave to present the petition by any misrepresentation or concealment of the nature of the case, the court may, if it pronounces a decree, do so subject to the condition that the decree shall not have effect until after the expiry of one year from the date of the marriage or may dismiss the petition without prejudice to any petition which may be brought after the expiration of the said one year upon the same or substantially the same facts as those alleged in support of the petition so dismissed.
(2) In disposing of any application under this section for leave to present a petition for divorce before the expiration of one year from the date of the marriage, the court shall have regard to the interests of any children of the marriage and to the question whether there is a reasonable probability of a reconciliation between the parties before the expiration of the said one year.”
Proviso to the above-said section lays down that the period of one year can be waived by the courts in two categories of cases:
- In case of exceptional hardship
- In case of exceptional depravity
In a recent judgment of the Hon’ble Punjab and Haryana High Court, the Division Bench of the Court in FAO No.658 of 2021 titled Shivani Yadav Vs Amit Yadav decided on 06.08.2021 waived off the period of 1 year, stating that the couple had stayed together only for two days after their marriage and this is the sufficient ground to allow their application filed under Section 14 of the Act for waiving off the mandatory period of one year.
Can Mutual Consent Divorce be filed through Special Power of Attorney?
Section 13B of the Hindu Marriage Act do not contain any provision abrogating the power of power of attorney holder under the Code of Civil Procedure, and therefore, the procedure governing the proceedings filed under Section 13B of the Hindu Marriage Act would be governed by Order III as well as Order VI of the Code of Civil Procedure. It is imperative on the part of the Family Court to entertain the application for divorce by filing mutual consent presented to it on the ground that the parties have been residing separately for more than a year and they have not been able to live together and they have mutually agreed to dissolve the marriage. The procedure for dissolving the marriage is set out in subsection(2) of Section 13B which mandates the Court on being satisfied that a marriage has been solemnized and that the averments in the petition for mutual consent filed by the parties is true, to pass a decree of divorce dissolving the marriage, after affording an opportunity to the parties and after making such
inquiry as it thinks fit. The Court has to thus ascertain the expenses of marriage and irrevocable breakdown of the marriage with no possibility of any reconciliation.
The Bombay High Court In Writ Petition st. no.1788 of 2018, titled Harshada Bharat Deshmukh Versus Bharat Appasaheb Deshmukh observed that In the light of advanced technological development, the physical presence of the parties even at the time of allowing the petition by mutual consent, is not mandatory. The Court observed that the physical presence of both the parties is generally asked and necessary to verify the authenticity of the identity of the parties to confirm their consent. However, in peculiar circumstances, like where one of the parties cannot remain present due to certain practical difficulties i.e. job, leave, visa, etc. Due to globalization and since noticeable educated young persons are crossing the borders of India it is not possible to remain present. The Court observed that there is no illegality to solve such difficulty by adopting novel and available ways by use of advanced technology of communication and the new scientific method. In the peculiar circumstances of the case, the Court had directed online counseling to be done with the help of a webcam and online consent through the webcam and laptop/computer.
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