[Guest Post] Divorce by Mutual Consent

Editor’s Note – The Hindu Marriage Act, 1955 is one of the advanced personal laws in the country. It has incorporated the changes in accordance with changing times. It provides for the relief of restitution of marriage and divorce. Originally, the Hindu Marriage Act, 1955 recognized divorce only on fault grounds of either party to the marriage.  Marriage Laws (Amendment) Act, 1976 introduced Section 13-B, i.e. – divorce by mutual consent. This provision has been given retrospective effect and is applicable to marriages whether solemnized before 27th May 1976, the date on which the Marriage Laws (Amendment) Act, 1976 became effective or thereafter.

The said provision has remained a matter of debate over the years. The Hon’ble Apex Court has tried to simplify the bare language in its various decisions. The issue which has been considered often is the prescribed minimum waiting period. Section 13B(2) contains a bar to divorce being granted before six months of time elapsing after the filing of the divorce petition by mutual consent. The said period was laid down to enable the parties to have a rethink so that the court grants divorce by mutual consent only if there is no chance for reconciliation.

The Constitution Benches of the Apex Court in Supreme Court Bar Assn. v. Union of India, (1998) 4 SCC 409 and E.S.P.Rajaram v. Union of India, (2001) 2 SCC 186 held that under Article 142 of the Constitution, the Supreme Court cannot altogether ignore the substantive provisions of a statute and pass orders concerning an issue which can be settled only through a mechanism prescribed in another statute.

In Nikhil Kumar vs. Rupali Kumar, decided on 27 April 2016, the Apex Court waived the statutory period of six months and dissolved the marriage between the parties. Similarly in Amardeep Singh vs. Harveen Kaur , decided on 12 September, 2017, the Hon’ble Supreme Court observed that  the period mentioned in Section 13B(2) is not mandatory but directory, 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.

The divorce on the ground of Irretrievable Breakdown of Marriage was recommended by the Law Commission of India in its 217th Report submitted in 2009.


Practical Question


The Hindu Marriage Act, 1955 provides for divorce by mutual consent of the husband and wife. How long it takes when both the parties are willing for a divorce, and what is the procedure for the same?

This practical question has been answered by Adv. Siddhartha Shah, an International Divorce Lawyer. He is the founding partner of Siddhartha Shah & Associates, a full service law firm. He may be reached at contact@siddharthashahassociates.com.

Mutual Consent divorce will take minimum about 6 months after submitting divorce papers as per Section 13- B under the Hindu Marriage Act in India.

Procedure

The parties who are interested to seek divorce by mutual consent may –

1. Kindly note that the first step is to identify a good expert Divorce/Matrimonial lawyer who would give reasonable time and expert advice in assisting & sorting the issues along with the necessary legal procedures.

2. Systematic preparation of the paperwork along with the Mutual Consent agreement terms as per the Lawyers advice & consultations, keeping in mind the legal mandates as necessary as per law.

4. Submitting & Filing the said paper-work at the Court after following the due legal formalities procedures & mandates.

5. Attending the Court & Appearances for Verifications and counseling procedures as necessary as per legal rules.

6. Again after the completion of 6 months, there is Final Paper-work process i.e by submission of evidentiary affidavits of both parties in the Court as needed before the final Orders & judgment.

Kindly be clear & informed on the issues pertaining to the legal and professional charges & miscellaneous expenses involved in the said entire process of mutual consent divorce ( Advisory, Drafting & filing of paperwork, Court Appearances etc).

This post has been internally edited by The Law & Practice Blog’s editorial team.

Image from here.

L&P Editorial Team

The Law & Practice Blog's editorial team.

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