Divorce by Mutual Consent in India


Marriage means two in body but one in mind. Its not about two people gazing at each other but looking in the same direction. Marriage is a union of 2 hearts. Success of married life depends on the mutual trust, understanding, love affection, service and self sacrifice. Once the mutual trust is shaken, happy married life will be shattered into pieces. The result is one of the misery and emotion. Whether one accepts it or not liberalization in the way of living of individuals and reformation in age old customs and due to modernization and understanding of individual rights and equal status irrespective of sex it is natural for either of the spouse to seek for dissolution. Where the marriage ties have been broken the court has to look to the interest of the parties and the welfare of the children as paramount. When it is impossible to live like husband and wife, any compulsion to unite them will lead to social evil and disturbance of mental peace and disorder in the family life. However rigid social fabric it is not the social system but the personal safety of the parties to the wedlock, shall prevail. This should be the guiding principle. The consent theory of divorce( or theory of free divorce) is the backbone for the development of the provision of divorce by mutual consent. The protagonists of this theory hold the view that parties to marriage are as free to dissolve a marriage as they are to enter it. If marriage is a contract, based on free volition of parties, the parties should have equal freedom to dissolve it. It may happen that two parties who have entered into a marriage with free consent, may later on realize that they committed a mistake and for one reason or the other are finding difficult to pull on together smoothly and live together harmoniously in that case it is not merely physical life, it is also their entire family life including moral life which is affected. If from this situation, they have no way out, one may be forced to commit a matrimonial offence, out of frustration. In short continuance of such marriage is neither in the individual nor in the social interest. Thus the protagonist of consent theory of divorce argued that freedom of marriage implies freedom of divorce. Thus the very basis of marriage is mutual fidelity and if for any reason the parties feel that mutual fidelity cannot continue, they should have freedom to dissolve the marriage, as only by dissolution, fidelity can be preserved. The advocates of this theory hold the view that freedom of divorce will bring about more happy marriages and reduce the number of unhappy ones. Different types of divorce cases in city courts and other approximate break up. Source: State Social Welfare Department According to a statistics from World Health Organization (1991), divorce rate in India is 7.41 per 1000. Though presented in 2002, based on survey conducted in 1991, it can be assumed that years’ later, single parenting in India has simultaneously increased as in most countries. In Mumbai , the ‘commercial capital ‘ of India , marriage counsellors have been noticing a steady rise in divorce cases filed at the seven family courts in the city. In 1995, there were 1446 cases; this rose to 1819 in 2002. Figures of ‘divorce by mutual consent’ also doubled from 530 to 989, in the same period. Calcutta high court alone saw 1869 divorce suits in 2002 and 2003 (till June). Of them 60% – a little higher than the average- are mutual consent cases, say officials. Divorce by mutual consent; in its general approach, can be understood as a mutual agreement between husband and wife to get separated in the situation of unhappy marriage. Legally speaking, divorce by mutual consent means that the law recognizes the situation that has existed for some time and in effect says to the unhappy couple: “if you think that your marriage cannot and if you both are convinced that it should be dissolved, the marriage will be dissolved. Divorce by mutual consent must also be understood in the context as an outcome of consent theory, which advocates that freedom of divorce will bring about more happy marriages. Mutual consent as aground for divorce, however, has been on the Hindu marriage act since 1976. In India, the mutual consent as ground for divorce has been added through the legislation on which divorce can be granted. Section 13B of the Hindu Marriage Act Provides : Divorce by mutual consent. (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 solemnized 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. (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 solemnized 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. Meaning of expressions: A) “Living separately”. The expression living separately appearing in s.13b (1) of the act connotes not living like husband and wife. It has no reference to the place of living. The parties may live under the same roof by force of circumstances, and yet they may not be living as husband and wife. The parties may be living in different houses and yet they could live as husband ad wife. What seems to be necessary is that they have no desire to perform marital obligations and with that mental attitude they have been living separately for a period of one year immediately preceding the presentation of the petitioner. B) “Have not been able to live together”. This expression appearing in s. 13B (1) of the act seems to indicate the concept of broken down marriage and it would not be possible to reconcile themselves. Scope of section 13B: In a petition under section 13B of the act the parties are not required to prove anything in addition to that lay down in the section itself. During pendency of appeal in divorce proceedings, the parties may agree to dissolve the marriage by mutual consent or compromise provided it is neither unlawful nor the result of collusion. It is now possible to dissolve a marriage by agreement between the parties although none of the grounds on which a marriage may be dissolved by a court is found to exist. Even a petition by one party may be converted into a fresh petition for dissolution of marriage by mutual consent. Where a divorce is granted without following the procedure laid down in S.13 b of the act, the order is invalid. Parties merely agreed orally at the time of arguments that they had mutually agreed that their marriage should be dissolved by mutual consent. Further it is also a mandatory provision under s. 23(1) (bb) of the act to satisfy the court that consent has not been obtained by force, fraud or undue influence. There are conflicting views of high courts on the interpretation of s. 13 B of the regard to the effect of withdrawal of consent by a spouse after filing the petition for mutual divorce but before obtaining the decree, that is during the pendency of the proceeding. To resolve the conflicting views of different high court’s the law commission of India has recommended in its one hundred thirty sixth report that an explanation be added to section 13 b to the effect that the consent of both the spouses reflected in the joint petition must subsist at the point of time when the court passes the final order granting the decree as prayed. Divorce by mutual consent is provided in Hindu marriage act, applying to the Hindus, Buddhists, Sikhs and Jains, in section 13 B and the Parsi marriage and divorce act, applying to the Parsi Zoroastrians, in sec.32 B, provide for divorce by mutual consent. The special marriage act, in section 28 contains similar provisions. Provision is now available for the Christians in the divorce act, 1869, in section 10A as amended by act 51 of 2001. Muslim were first to have such provisions in the Muslim personal law in the shape of dissolution of marriage by Khula. With spread of education, consciousness, emancipation of women, break down of joint family system, more and more families are becoming unstable. More specifically, with substantial increase in female education, women are trying hard to develop their independent personality. They are taking to employment, becoming economically independent and participating more freely in public life. Out of economic necessity some women are required to take up jobs for supporting the families. All these factors have brought about a change in their expectations and hopes from the matrimonial tie. From the position of subservient and secondary status, the women are now aspiring to be equal partners. These developments on the one hand are creating a more enlightened and meaningful marriage relationship, but on the other hand, unfortunately leading to demonstrable frictions amongst the spouses. Divorce by mutual consent, to a certain extent, reflects the maturity of the partners, who show courage by accepting they made a mistake and are willing to take the consequences. The partners can part without the bitter acrimony and conflict of custody cases and thus retain the respect of their children who to are spared the disconcerting details of their parents marriage. Therefore it can be said that the divorce by mutual consent is the proper way to salvage the remains of a marriage that has failed. “The important thing is to overcome the sorrow that accompanies any type of separation, such as death or divorce. The vital thing is to continue advancing. Do not look back. Just forge on. There are many reasons why people bid farewell to one another. People have their own thoughts and situations. The deep scars within your heart may not heal quickly. Yet brace yourself so you can look forward. You should strive to move on, cutting through the clouds in your heart. As long as you advance, new hope will be born. The sun will rise. Only when you continue to advance can you encounter an even better, more wonderful you.” Dr. Daisaku Ikeda


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