No Provision in the Beginning
The Hindu Marriage Act came into existence in the year 1955. In the beginning, the law relating to divorce was not very liberal and there was no provision to seek divorce by mutual consent. Rather while seeking divorce, the parties were bound to mention that there was no collusion. The courts were also conservative while granting relief to the spouses appearing before them. But gradually taking into consideration the practical situation faced by the aggrieved parties, the Legislature in its wisdom brought suitable legislation to make the divorce provisions more meaningful, liberal, and practicable.
Taking into consideration such type of eventualities, an amendment was brought in the Hindu Marriage Act, 1955, in the year 1976, and Section13B was added in the Act to make a provision to seek a decree of divorce by way of Mutual Consent. Section 13B of the amended Act reads as under:
(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 solemnised before or after the commencement of the Marriage Laws (Amendment)
Act, 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 not 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petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall on being satisfied after hearing the parties and after making such enquiry as it thinks fit, that a marriage has been solemnised 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."
By bringing an amendment in Section 13 of the Hindu Marriage Act, 1955 with the introduction of Section 13B by the Marriage Laws (Amendment) Act, 1976, the Government certainly is appreciative of a progressive legislation. This legislation in the Hindu Marriage Act has liberalised the divorce provisions and has made the parties, who by any reason of compelling circumstances, are not able to adjust or pull on together, to sever their marital bonds expeditiously, and without bitterness, distress or humiliation. This provision is popularly known as Divorce by Mutual Consent and, of course, is voluntary in nature.
This provision is applicable to all the Hindus covered under the Hindu Marriage Act, 1955 before or after the commencement of Marriage Laws (Amendment) Act, 1976.
All the Hindu spouses who have been married under the provisions of the Hindu Marriage Act, 1955 are entitled to take advantage of the amendment brought in the Act in the year 1976. Therefore, as per Section 13B of the Marriage Laws (Amendment) Act, 1976, a petition for divorce can be made in the Court of District Judge to seek relief by way of mutual consent.
4. How to Move a Petition
Under Section 13B of the Act the procedure for applying for dissolution of marriage by mutual consent is quite easy, simple and less cumbersome. The first and foremost requisite to be entitled to move the petition under the said provision is that both the parties must come to the court with clean hands. The mutual consent to sever marital bond should be transparently voluntary and without any pressure, coercion or fraud whatsoever.
Like any other petition for divorce, it is filed in the same court with the same court fee. Moreover, on such a petition the court can pronounce its decision on the spot and the parties are saved the botheration of visiting the lawyers and the courts for years spending time, money and energy. This is indeed a welcome legislation and has been widely applauded.
Under Section 13B the husband and the wife are required to file a joint petition on the ground that they have been living separately for a period of one year or more. They have to submit specifically that they have not been able to live together due to unavoidable circumstances, and that they have voluntarily and mutually agreed to dissolve their marriage by a decree of divorce. In this regard Bombay High Court observed in Leela Mahadev Joshi v. Mahadeo Sitaram Joshi, (1991) 3 Bom CR 130: MANU/MH/0021/1991 : AIR 1991 Bom 105:
The term "have been living separately" has to be read in conjunction with "not having been able to live together". It is undoubtedly clear that if out of economic necessity or for reasons of employment, the spouses have been living separately and conversely, have not been able to live together, the Court will have to find out from the averments in the petition or from the oral evidence as to whether it is because of a break-down of the matrimonial relations or for any other reason. Section 13B presupposes only those cases where cohabitation, which is the essential ingredient of a valid and subsisting marriage, has come to an end because of a total break-down of the matrimonial relationship.
Court can recall its own judgment in case of fraud.-There are occasions where the parties do not approach the court with clean hands and obtain a decree of divorce by way of fraud or misrepresentation of the facts. Under such circumstances the court granting the decree of divorce has the power to recall its own judgment under its inherent power. In Pushplata Rout v. Damodar Rout, MANU/OR/0001/1987 : AIR 1987 Ori 1: (1987) 1 Hindu LR 213, the High Court of Orissa held that the court has to be satisfied apart from other provisions of Section 23 of the Act in particular and the provisions in Section 23(1), clause (bb) namely that the consent of any party has not been obtained by force or fraud.
Unilateral withdrawal of consent.-As is clear, both the parties have to move a second motion after the expiry of six months from the date of first motion under Section 13B of the amended Act. The question now arises as to what will happen if one of the parties withdraws the consent that it gave at the time of filing a joint petition. High Courts have divergent views on the issue. In K.I. Mohanan v. Jeejabai, MANU/KE/0004/1988 : AIR 1988 Ker 28: 1986 Ker LT 990:
1986 Ker LJ 742, the High Court of Kerala held that the consent given by a party can be withdrawn unilaterally. In Chander Kanta v. Hans Kumar, AIR 1989 Del 73: 1988 Raj LR 297: (1988) 2 Hindu LR 173, the High Court of Delhi observed that unilateral withdrawal of consent by one party is not permissible unless there is fraud or undue influence. In N.G. Rama Prasad v. B.C. Vanamala, MANU/KA/0110/1988 : AIR 1988 Kant 162: ILR 1988 Kant 142: (1988) 2 Hindu LR 16, the High Court of Karnataka further held that the Court cannot proceed to consider the petition on merits if one of the parties withdraws consent or refuses to join the motion for consideration of the petition on merits. We may mention here that in Section 13B, no condition is laid down for refusal to join the motion after six months.
The question of unilateral withdrawal also came up before Bombay High Court in Jaya Shree Ramesh Londhe v. Ramesh Bhikaji Londhe,MANU/MH/0358/1984 : AIR 1984 Bom 302: (1984) 86 Bom LR 184. In that case the wife had filed a petition for judicial separation or in the alternative, for divorce on several grounds. Thereafter the petition was withdrawn and on the same day a joint petition for divorce by mutual consent was presented.
The parties made the usual averments, like their living separately for more than one year, not being able to live together and their mutual agreement for divorce. But later on husband changed his mind and moved an application saying that he did not want a divorce. The Trial Court dismissed the petition. Against this order an appeal was filed in the Bombay High Court, wherein it was held that once the consent was given it could not be withdrawn unilaterally by either of the parties.
The following observations of the Bombay High Court are worth taking note of:
"This position can very well be seen when we take into account the scope of an enquiry, contemplated under sub-section (2). I
have already observed that the enquiry should be more particularly directed in order to find out as to whether the averments in the petition are true or not. As far as the consent part is concerned the enquiry should obviously be with respect to the consent that was mentioned in the petition."
It will not be possible for any party who voluntarily agrees to have divorce by mutual consent to revoke or withdraw consent at a later stage. Such permission will nullify the very purpose of joint petition. The Punjab and Haryana High Court took a similar view in Nachhattar Singh v. Harcharan Kaur, AIR 1986 P&H 201.
In view of a landmark judgment of the Supreme Court in V. Bhagat v. D. Bhagat, JT 1993 (6) SC 423, there is an urgent need for review of the judgment delivered by the Supreme Court in Sureshta Devi v. Om Prakash, JT 1991 (1) SC 32: AIR 1992 SC 1904: (1991) 2 SCC 25 where it was held that the petition of divorce by mutual consent can be withdrawn unilaterally so that the desired benefit of the provisions made under Section13B of the Hindu Marriage Act is derived as per the letter and spirit of the legislation.
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