Introduction
Marriages are not just agreements it is a sacred alliance between two families, when the spouse involved in the alliance are not able to continue it any furthermore, they get separated from each other and then “Divorce” comes into play. The term divorce is derived from a Latin word “Divortium” means to separate. Divorce is choice but a relief granted in certain cases.
This article will essentially discuss the idea of divorce on mutual grounds. Divorce is a fast rising stat, even if the marriages are considered sacred.
What is divorce by Mutual Consent Divorce?
It is a relief for both of the spouses who have agreed on the dissolution of marriage in a more sophisticated and cordial manner. In such cases a petition is filled in district court under S.13 B of Hindu Marriage Act, 1955 and the court may grant access to the decree of divorce on mutual consent divorce.
Explanation of S.13 B of Hindu Marriage Act, 1955
- It is important that spouses are not living together for period of one year or more.
- They have mutually agreed to end their marital relationship.
The section 13 B (2) explains us about the cooling off period of 6 months from the date of presenting the petition, 18 months from the date the petition is presented by the parties.
If the court feels all the ingredients has been fulfilled and the facts are true they can’t grant the petition for divorce.
Ingredients of Section 13 B to file the petition of Divorce by Mutual Consent Divorce.
- Both the parties should jointly present the petition.
- The haring of court should be in presence of both the parties.
- For a period of one year the parties should be living separately.
- Parties mutually agreed to dissolve the marriage.
- Parties were not able to live together.
- Cooling off period of six (6) months is necessary.
- The parties should be present before the expiration period of 18 months (1 year 6 months)
- Consent for the divorce shall be obtained freely. Consent obtained by fraud, force or undue influence are not allowed to file the decree.
Whether consent can be unilaterally withdrawn
There have been contrasting judgements on this issue. The controversy is that since under this section both parties have to file a joint petition for divorce how can one party unilaterally withdraw from it. Also, one of the purposes of giving a time period of six months is to allow parties to re-think their decision and if one of the party decides to withdraw from it, why should it not be allowed to do so.
In Jayashree Ramesh Londhe v Ramesh Bhikaji, the court held that once a joint petition by mutual consent was filed, no party could withdraw from it without the consent of both the parties. Likewise, in Nachhattar Singh v Harcharan Kaur,[13] it was held that- “If both the parties had voluntarily consented to file the petition for dissolving the marriage by mutual consent divorce and all other conditions mentioned in sub-section (1) of section 13-B of the Act are fulfilled, it will not be open to a party to withdraw the consent.
Whether mere silence at the second stage would tantamount to withdrawal
On the off chance that the gatherings who have petitioned for legal separation under shared assent and after the finish of the half year time frame what can anyone do both of them don\’t turn up. Will it add up to withdrawal of assent? Rajasthan High Court on account of Suman v Surendra Kumar has addressed these issues. For this situation the spouse in the wake of recording a joint assent request for separate didn\’t show up for hearings. The family court held that no declaration could be passed without both the gatherings. On offer it was held by the court that-\”When one gathering has himself left the issue for surmising, the derivation should be attracted favour of assent instead of for nonappearance of assent.\” It was held that quiet can\’t be taken to add up to withdrawal of assent
Conclusion
Through this paper, we have examined the Section 13-B of the Hindu Marriages Act. Separation by common assent gives a chance of agreeable goal of questions among gatherings and sets aside time and cash. The necessities as given under this segment are that before recording a joint request for separate from parties must be living independently for a time of in any event one year. As we referenced out before living independently doesn\’t really hints physical detachment, what is fundamental is that gatherings are not satisfying conjugal commitments and not living as a couple. The subsequent prerequisite is that the gatherings have not had the option to live respectively. The way that both the gatherings have recorded a joint request by shared assent is demonstrative of the face that gatherings have not had the option to live respectively. Just thing that is significant is that the assent has been gotten unreservedly and not by method of power, misrepresentation or unjustifiable impact as the entire reason for shared assent will be vitiated if assent isn\’t free. After gatherings have documented a joint appeal for separate satisfying all the essential conditions they are given a timespan of a half year and not over eighteen months after which they need to record a subsequent movement and courts in the wake of hearing the gatherings and investigating the averments in the request pass a pronouncement of separation. The three purposes of conflict are that whether the holding up time of a half year is obligatory or registry, the second is that can parties singularly pull back their assent and third that whether quiet at the subsequent stage would add up to commensurate to withdrawal. There have been differentiating decisions on the initial two issues. Distinctive high courts have received various measuring sticks in the translation of the Section 13-B. Some High Courts have held that the holding up time of a half year is required according to the segment though some High Courts have received the soul of law more than the specialized expressions of the segment and have precluded that the period is index if there is no possibility of compromise between the gatherings. Notwithstanding, Supreme Court utilizing its exceptional forces under Article 142 of Constitution can pass the announcement of separation without sitting tight for a time of a half year. Additionally, Supreme Court on account of Sushreta Devi has precluded that the appeal of separation can be pulled back singularly. On the third issue the courts have precluded that quiet or not showing up for hearings won\’t add up to withdrawal of consent.