Divorce by Mutual Consent As Under Hindu Law

Divorce is the legal dissolution of marriage. Under Hindu law either of the aggrieved party to the marriage can file for divorce under any of the grounds mentioned in section 13 of the Hindu Marriage Act, 1955. However, if the parties are of the view that their marriage is not working and they cannot live with each other, then in that case they can file divorce by mutual consent too. The provision for divorce by mutual consent was not there when the Hindu Marriage Act was originally enacted in 1955. It was only in the year 1976 that by an amendment that a new section 13B was inserted in the Act which dealt with the provision of mutual consent. The divorce by mutual consent is different from a regular case of divorce as in the case of a divorce under section 13, the aggrieved party is the petitioner and the other party is the respondent whereas it is not so in the case of a divorce by mutual consent. In divorce by mutual consent both the husband and the wife are the petitioners and they file a joint petition seeking dissolution of their marriage. However, the consent must be free and not obtained by way of force, fraud, undue influence or any kind of threat as the whole purpose of mutual consent will be vitiated if consent is not free.

One of the important conditions for seeking divorce by mutual consent is that the husband and the wife must be living separately for one year prior to the filing of the petition. If this condition is satisfied then both the husband and the wife can file a joint petition in the District Court. The filing of the joint petition is known as first motion petition in which both the parties have to give affidavit that due to irreconcilable differences between them, they can no longer stay together as husband and wife and that divorce should be granted to them. After that a cooling period of 6 months starts. This period of 6 months is given by the Court so that both the husband and wife can think over again of their decision of divorce and to find possibility of reconciliation. However, if still there is no reconciliation then the husband and wife can file second motion petition after the expiry of 6 months and not later than 18 months.

The parties are at a liberty to withdraw his/her consent at any point of time. The Supreme Court in the case of Hitesh Bhatnagar vs. Deepa Bhatnagar (2011) held that even if husband or wife withdrew consent after 18 months but prior to passing of the decree by a competent court, the court could not grant divorce. So, either of the husband or wife can withdraw his/her consent before the passing of the decree by the court.

So, a divorce by mutual consent means a decree of divorce obtained when both husband and wife, agree for divorce in an amicable manner. It avoids the allegations made by either party against the each other and also it is the quirkiest form of divorce.