Mutual Divorce: A Glance
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- Mutual Divorce: A Glance
As per the Hindu traditions and customs, a marriage is considered a sacred union and not a contract, unlike Muslim laws where the marriage is considered as a contract. However, the Hindu laws, despite treating marriage as a sacred union and not as a contract, provide different ways to procure divorce from their counterparts. The law of divorce for Hindu women is being dealt with by and under the Hindu Marriage Act, 1955 (hereinafter referred to as “the Act”).
The Act furnishes two ways of seeking a divorce for both men and women i.e., contested, and mutual divorce. As the same suggests, a contested divorce petition implies that a divorce petition is filed by a party against his/ her spouse; whereas, the mutual divorce petition signifies that a divorce petition is signed and filed mutually by both parties.[1]
Section 13 of the Act furnishes various grounds, including but not limited to cruelty, desertion, bigamy, physical or/ and romantic relation with some third person, conversion to some other religion, has not been heard alive for 7 (seven) years, or more, etc., to a spouse in order to procure a divorce from his/ her counterpart in the contested divorce petitions. The legal mechanism enshrined under the Act to secure divorce via a contested divorce route is quite complex, as well as lengthy. Whereas, the mutual divorce mechanism is bereft of legal complexities and paves a precious opportunity for a marital couple to secure a divorce without shedding various years of their lives in the courts.
In this piece of writing, we will be discussing the legal mechanism of mutual divorce as enshrined under the Act along with the landmark judicial precedents shaping this legal mechanism with the changing demands and needs of the society.
Mutual Divorce
Section 13 of the Act stipulates the process of mutual divorce. It states that the couple who has been living separately for more than a year and have mutually agreed to dissolve the marriage may file a mutual divorce petition before the concerned family court.
Upon presentation of the petition, the court after getting satisfied and convinced that the aforesaid requisite legal requirements have been met by the parties and the parties wilfully and without any coercion want to break their sacred matrimonial ties and live separately from each other may pass the decree of the First motion of mutual divorce (for brevity “The First Motion”). It is apposite to note that mere passing the First Motion is not sufficient to dissolve the marriage as per the law.
Thereafter, the parties, again need to approach the concerned court, after 6 (six) months of the date of passing of the First Motion, but not later than 18 (months) from the said date, and file a joint petition seeking divorce decree of Second Motion from the very court. Thereafter, the court upon satisfaction or/ and inquiry from the parties comes to the conclusion that the parties have wilfully signed and filed the divorce petition, and living separately from each other for more than a year, and mutually agreed to part ways and live separately from each other may award the divorce decree of the Second Motion of mutual divorce and thereby dissolve the marriage of the parties (for brevity “The Second Motion”). It is apposite to mention that the marriage gets legally dissolved after securing the Second Motion from the concerned court, and the parties thereafter remain no longer husband and wife.
As we studied the legal process of mutual divorce, the following notable aspects of law hold significant importance.
Settlement Agreement
The First Motion as well as the Second Motion is based upon an agreement of the parties that they do not want to stay together and dissolve the marriage. Such agreement must be in writing wherein the husband must clarify the amount and mode of payment of the maintenance, and alimony being given to the wife as well as about the custody of the children, if any.
The law is silent upon the maintenance, and alimony in mutual divorce cases as the same is totally dependent upon the parties’ consent and choices. Further, the wife can agree to secure a mutual divorce without seeking any maintenance or/ and alimony from her husband.
Jurisdiction
At this juncture it is imperative to note that such divorce petitions may be presented to the family court/ district court within whose territorial jurisdiction;
Cooling off period
One of most debatable issues in mutual divorce cases is the cooling off period as stipulated under section 13B (2) of the Act. The time period of 6 (six) months to 18 (eighteen) months as stated above, is also known as the cooling off period.
The intention of the legislature to put cooling-off period of 6-18 months is to give another chance to the parties to reconsider their decision of parting ways, and to avoid decisions made in the moment of heat.
However, at the same time, the marriages where the parties have tried their level best to reconcile, and they, after rounds of deliberations come to the conclusion that they do not want to stay together then in such cases the aforesaid cooling-off period becomes a harsh compliance to adhere to.
Keeping in view the aforesaid possible paradox consequences of a cooling-off period, the Supreme Court of India in the case of Amardeep Singh vs. Harveen Kaur [3] held that the family court may condone the cooling off period where the court deems fit necessary to expedite the process and allow the parties to present the divorce petition for the Second Motion even prior to the expiry of the 6 months from the date of passing of the First Motion. However, while condoning the cooling off period, the concerned family court should consider the following parameters: -
“i) the statutory period of six months specified in Section 13B(2), in addition to the statutory period of one year under Section 13B(1) of separation of parties is already over before the first motion itself;
ii) all efforts for mediation/conciliation including efforts in terms of Order XXXIIA Rule 3 CPC/Section 23(2) of the Act/Section 9 of the Family Courts Act to reunite the parties have failed and there is no likelihood of success in that direction by any further efforts;
iii) the parties have genuinely settled their differences including alimony, custody of child or any other pending issues between the parties;
iv) the waiting period will only prolong their agony.”
In addition to the above, the 5-judge bench of the Supreme Court of India recently in the case of Shilpa Sailesh vs. Varun Sreenivasan [4] has concluded that the Apex Court is empowered to waive the cooling off period as mentioned under section 13B of the Act while keeping the guidelines enunciated in the case of Amardeep Singh (Supra).
Conclusion
Marriage is indeed a sacred union and the Indian society’s foundation is based on good and successful marriages. However, forcing the individuals to stay in stale, rough, and perhaps dead relationships merely because they are married is not just counterproductive to society but also harsh and inhumane for the individuals.
The law in order to maintain the balance between the foundation of the society, as well as the rights and liberties of the individuals to part ways when they are left with no other better choice, has stipulated the aforesaid comprehensive mechanism. Moreover, the Supreme Court of India has rightly interpreted the legislative intention and provided much-required flexibility qua the waiving of the cooling off period and delivered complete justice.
References
[1] 13 of the Hindu Marriage Act, 1955
[2] Section 19 of the Hindu Marriage Act, 1955
[3] (2017) 8 SCC 746
[4] 2023 Livelaw SC 375
