Mutual Divorce

Abhay Chauhan v. Rachna Singh, AIR 2006 Del 18—the impugned order declined to
waive 6 months waiting period; contention-not a marriage which is just 4 months old, but 4
years & has been 3years since they parted company-all efforts of reconciliation was in vain
H- requirement of 6 months can be waived as there existed not even a slightest possibility of
reconciliation; the decision of the parties is not influenced by any external factor such as
coercion, intimidation, or undue influence by any persons -both were well educated
Dinesh Kumar Shukla v. Neeta, AIR 2005 AP 106- para 10
Facts lies in a narrow compass. On 26-11-1987, marriage between applicant and respondent
was performed as per Hindu rites. Out of wedlock, one daughter-Prachi was born on 24-11-
1988. It appears that relations between the parties instead of ripening into mutual love and
affection for each other, soured and applicant and respondent were unable to enjoy the bliss
of happy married life for long. On 8-1 -1996, applicant filed petition under Section 13(1) in
the Court below seeking divorce and dissolution of marriage on the ground of cruelty and
desertion. Although respondent wife resisted the petition but all efforts made by the Court
below for reconciliation were in vain. During the pendency of petition for divorce, on 1-9-
1998 both husband and wife made a joint petition under Section 13B of the Act for divorce
and dissolution of marriage by mutual consent. Waiting period compulsory TC order
In civil litigation every party has a right to waive the advantage made for his benefit and
protection. However, there can be no waiver of a statutory requirement which is imposed in
public interest. If the object of a statute is not one of general policy, or if the thing which is
being done will benefit only particular person then the conditions prescribed by the statute is
not considered as being indispensable. This rule is expressed by the maxim of law "Quilibet
protest renuntiare juri pro se introducto". (An individual may renounce a law made for his
special benefit). As a general rule, the conditions imposed by statute which authorise legal
proceedings are treated being indispensable to giving the Court Jurisdiction. But if it appears
that statutory conditions are inserted by legislature simply for the benefit of the parties to the
action and that no public interest is involved, such conditions can be waived without affecting
the jurisdiction of the Court. As noticed earlier, there is interregnum period so that parties can
have second thought over the matter. This procedural interregnum is provided for the benefit
of parties in case for divorce. They can certainly waive this period of interregnum where the
marriage is broken irretrievably. Where during the pendency of petition for divorce either at
the instance of husband or wife, both husband and wife jointly make an application and fulfill
the mandatory requirements of Section 13B(1), in the considered opinion of this Court the
waiting period can be brought down, provided the Court trying the main issue and on an
enquiry is satisfied that the parties have consented for mutual divorce without duress,
misrepresentation, force or fraud and there is no chance of reconciliation. In such situation
Court may pass a decree for divorce. If the parties are litigating for long time and all the
efforts for the reconciliation had proved abortive, it will not be in the interest of justice and in
the spirit of the provisions of statute to deny the relief by not reducing the waiting period.
This would only prolong the agony. No prejudice is going to be caused to either of party. If
the legislature's intention was that provisions of sub-section (2) are mandatory it could have
provided consequences for the breach of provisions of sub-section (2) of Section 13B. No
such provision has been incorporated when the Act was amended in the year 1976
and Section 13B was introduced. It is well established that the statutory provision which are
procedural in nature may not always held to be mandatory, if thereby no prejudice is caused.
Prescribing the time limit for doing any act is generally presumed to be directory.
Conflicting views
In Manish Goel v. Rohini Goel MANU/SC/0106/2010 : (2010) 4 SCC 393, a Bench of two-
Judges of this Court held that jurisdiction of this Court Under Article 142 could not be used
to waive the statutory period of six months for fling the second motion Under Section 13B, as
doing so will be passing an order in contravention of a statutory provision.
This Court noted that power Under Article 142 had been exercised in cases where the Court
found the marriage to be totally unworkable, emotionally dead, beyond salvage and broken
down irretrievably. This power was also exercised to put quietus to all litigations and to save
the parties from further agony. This view was reiterated in Poonam v. Sumit Tanwar
MANU/SC/0187/2010 : (2010) 4 SCC 460.
 M. Krishna preeta v. Dr. Jayan Moorkkanatt, AIR 2010, Ker- contrary view was
taken

 Amardeep Singh v. Harveen Kaur, MANU/SC/1134/2017-21. Since we are of the

view 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.
 Sureshta Devi v. Om Prakash, AIR 1992 SC 1904-husband & wife together file for
divorce; later, the wife claimed her consent was obtained under pressure, & not even
allowed to meet her relations to consult- District J dismissed claim for divorce;
however upheld by the HC after giving consent, a spouse cannot unilaterally
withdraw such consent
 Whether consent once given is irrevocable, whether a party can unilaterally
withdraw consent?
An analysis of Section 13-B and Section 23(l)(b) of the Hindu Marriage Act, 1955
makes it clear that the mutual consent of the parties during the filing of the petition is
not what gives the Court the authority to pass a decree of divorce under mutual
consent.
The period of waiting for 6-18 months is meant for the purpose of changing of mind
of either of the parties or both before the joint motion.
Under Sub-Section (2) of Section 13-B of the aforesaid Act, there is nothing that
prevents either of the Spouse from not being a party to such joint motion.
What is significant in this provision is that there should also be mutual consent
when they move the court with a request to pass a decree of divorce.
 Sub-section (2) requires the Court to hear the parties which means both the parties.
If one of the parties at that stage says that “I have withdrawn my consent”, or “I
am not a willing party to the divorce”, the Court cannot pass a decree of divorce by
mutual consent. If the Court is held to have the power to make a decree solely
based on the initial petition, it negates the whole idea of mutuality and consent for
divorce.
 Asok Hurra V. Rupa Zaveri 1997 (4) SCC 226
Divorce can be granted even when party withdraws consent; in the case, the wife
withdrew consent after statutory 18 months period; no evidence that there was fraud,
or undue influence or mistake; no scope for reconciliation- marriage broken down
irretrievably -criticised Sureshta Devi decision as too wide & does not logically
accord with Section 13(2)(b) of the Act.
 Anil Kumar Jain v. Maya Jain, AIR 2010 SC 229
Anil Kumar Jain (Appellant) and Maya Jain (Respondent) filed a joint petition for
divorce by mutual consent under Section 13B of Hindu Marriage Act, 1955 in the trial
court. But after the expiry of 6 months, wife withdrew her consent for the petition, so
court dismissed their joint petition. In the appeal before the High Court also, the
respondent wife expressed her desire to live separately from the appellant husband but
on the contrary she did not want a decree of dissolution of marriage to be passed,
hence the same was also dismissed by a single Judge. Aggrieved by the order of the
High Court, appellant filed a special leave petition.
Whether a decree can be passed in the petition of divorce by mutual consent under
Section 13B of Hindu Marriage Act, 1955 when one of the parties to the petition
withdraws his/her consent to such decree prior to the passing of such decree?

JUDGMENT;-

The Hon’ble Supreme Court can in special circumstances pass appropriate orders to do
justice to the parties in a given fact situation by invoking its powers under Article 142 of the
Constitution, but in normal circumstances the provisions of the statute have to be given effect
to. The two propositions which can be discussed here is that, firstly, that though irretrievable
breakdown of marriage is not mentioned as a ground under Section 13 or 13B of Hindu
Marriage Act, 1955 for granting divorce but the said doctrine can be applied by the Supreme
Court by exercising its extra-ordinary powers under Article 142 of the Constitution of India
and can grant relief to the parties even without waiting for the six months period mentioned
under Section 13B of the said act. This power is limited to the Supreme Court and neither the
High Court not the Civil Court can pass orders before the six months’ time period.

Secondly, that the Supreme Court can convert a proceeding under Section 13 to one
under Section 13B of Hindu Marriage Act, 1955 by exercising its extra-ordinary
powers. The other courts are not competent to pass a decree in a petition for divorce
 by mutual consent if one of the parties withdraws his/her consent from it. By law, the
consent, which the parties gave at the time of filing the petition for divorce by mutual
consent, subsists till the later stage when the petition comes up for orders and a decree
is to be passed to dispose of the petition and it is the Supreme Court, which, by
exercising its extra-ordinary powers under Article 142 of the Constitution of India,
can pass orders to do complete justice to the parties.
The stand of the respondent wife that she wants to live separately from her husband
but is not agreeable to a mutual divorce is not acceptable, since living separately is
one of the grounds for grant of a mutual divorce and admittedly the parties are living
separately for more than seven years. The appeal is, therefore, allowed. The impugned
judgment and order of the High Court is set aside and the petition for grant of mutual
divorce under Section 13-B of the Hindu Marriage Act, 1955, is accepted.
 Hitesh Bhatnagar v. Deepa Bhatnagar (2011) SC
Husband & wife filed- later, wife withdrew in the interest of their daughter, -husband
appealed in the P& H HC, dimissed-moved before the SC
H-non-withdrawal of consent before 18 years was not a ground; such a period was
only prescribed to ensure quick disposal of cases of divorce by mutual consent;
cannot be granted if either of the spouses withdraw consent before the judicial decree
is passed; grant of divorce by mutual consent based on the free consent of the parties.

Section 10A of the Divorce Act -waiting period of separation is 2 years

 Mr. Shiv Kumar vs. Union of India, 2014 Kar
 The right to seek a divorce by mutual consent is provided under the Hindu Marriage
Act, 1955, the Parsi Marriage and Divorce Act, 1988 and even the Special Marriage
Act, 1954. All these statutes provide a mandatory one year period of separation of the
husband and wife prior to filing of a petition of divorce by mutual consent. The Indian
Divorce Act however, which governs divorces for christians, requires under Section
10A, a period of two years mandatory separation prior to the filing for divorce by
mutual consent.

 In 2012, a Bangalore based advocate, Mr. Shiv Kumar challenged the constitutionality
of Section 10A of the Indian Divorce Act, 1869 alleging that this provision amounted
to discrimination based on religion and violated the constitutional guarantee of
equality under Article 14. In addition, by forcing Christian couples into a oppressive
living situation of a loveless marriage for an extra year, it also offended their right to
live with dignity under Article 21. The petition also argued that this requirement of
Section 10A also violated the goal of bringing in a uniform civil code as enshrined in
Article 44 of the Constitution.  Further, the Kerala High Court had in Soumya Ann
Thomas vs Union of India  ILR 2010 (1) Ker 804 had already read down Section 10A
to mean that the expression ‘two years’ would be read as ‘one year’.

H- the Division Bench of the Karnataka High Court passed an order allowing the petition. It
held that the decision of the Kerala High Court’s pronouncement in Soumya Ann Thomas vs
Union of India ILR 2010 (1) Ker 804, that the expression of ‘two years’ in Section 10A of
the Indian Divorce Act 1869 would be read down to ‘one year’ would be applicable
throughout the country. It relied on the decision of the Supreme Court in Kusum Ingots and
Alloys Ltd vs Union of India and Anr  AIR 2004 SC 2321, where it was held that an order
passed on a writ petition questioning the constitutionality of a parliamentary Act would be
enforceable throughout the territory of India as per Article 226(2) of the Constitution of India
and thus the reading down of Section 10A of the Indian Divorce Act, 1869 was made
applicable in Karnataka as well.
In Soumya Ann Thomas, the petitioners were Christians by faith; filed for divorce; in order to
avoid the vice of unconstitutionality, the stipulation of the period of two years was reduced to
one