Introduction

Divorce by mutual consent.

13.B.
Hindu Marriage Act, 1955
(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 (68 of 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 18 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said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied,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 inquiry 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.
DIVORCE BY MUTUAL CONSENT
This section was introduced by the Amending Act of 1976. The Special Marriage Act 1954,
contains a provision which isin pari materia with this newly-added section.
The requirements of the section are:
1. There must be a petition jointly presented to the court by both the parties to the marriage.
2. The grounds for dissolution of the marriage by a decree for divorce must clearly and
categorically show:
i. that the parties have been living separately for a period of one year or
more before the presentation of the petition;
ii. that they have not been able to live together; and
iii. that they have mutually agreed that the marriage should be dissolved.
The granting of the decree in a properly presented petition as above is not a matter of discretion
with the court, but the court shall pass a decreesubject to the provisions of the Actand after
following the procedure and in the manner prescribed by sub-s (2). These are:
1) Both the parties must apply to the court not earlier than six months of the presentation of the
petition and not later than 18 months after that date that the petition may be heard and decree
dissolving the marriage may be granted;
2) the court must give a hearing to the parties;
3) the court may make such inquiry into the correctness of the grounds set out in sub-s (1);
4) the court must thereafter be satisfied that the marriage of the parties had been solemnised
after the Act came into force in 1955 and that the averments in the petition are true.1
5) When all the ingredients are proved, a decree of divorce cannot be refused. 2

1
Ravishankar v Sharda (1977) MLJ 784 (court cannot insist on any additional requirement).
2
Leela Joshi v Mahdeo AIR 1991 Bom 105; Harish Kumar v Anita AIR 2003 MP 197
 PETITION BY BOTH THE PARTIES TOGETHER
It is abundantly clear that the petition for divorce by mutual consent must be presented to the
court jointly by both the parties and not by one party, stating that the other party to the marriage
has given his or her consent to the dissolution of the marriage by a decree of the court. The
motion before the court for hearing of the petition should also be by both parties. The court will
not proceed to do so, unless both the parties at that stage want that the marriage should be
dissolved. In the undermentioned case, however, a different view has been taken. 3It would be
open to either party at any time, till passing of the decree, to withdraw the petition. of course, it
would be open to both the parties together also to withdraw the petition. In any such case there
can be no question of the court passing any decree of divorce.
According to the Madhya Pradesh High Court, even a joint petition for restitution of rights or in
the alternative for divorce is not barred.4
The same High Court has held that when a petition on the grounds of cruelty and desertion is
pending, and both parties apply for divorce by mutual consent, the court need not wait for the
stipulated period, and a divorce could be granted subject to the mandatory provisions of the
section.5
As mentioned herein, one of the parties or both can withdraw consent for mutual divorce.
Consent once given cannot be treated as irrevocable.6 However, the absence of one spouse
cannot impute a retraction of the consent, when there is no specific withdrawal.7
This section, therefore contemplates two steps to be taken for proceeding under this provision,
the first step being the separation of both the parties for a period of one year and the second
being the consent of both the parties when the court is moved on a motion after the period of six
months stipulated in the section. This is so since the court cannot be said to be seized of
jurisdiction, unless both parties consent at the time of inquiry before the court. It is only consent
which vests the court with jurisdiction under this provision.8 When circumstances under which a
divorce can be granted under the section are enumerated, a decree of divorce cannot be granted
when the conditions are not satisfied.9
In Sureshta Devi's case, the court had expressed the view that, mutual consent should inure till
the decree of divorce is passed, if consent is not withdrawn in the interregnum. This view

3
Jayashree v Ramesh AIR 1984 Bom 302. There is divergence of views on this point but see Harcharan Kaur
v Nanchhatdar Singh AIR 1988 P&H 27; Rupali alias Chetna v Sunil Data AIR 2006 P&H 93 (once consent is
withdrawn, the issue whether it was by force or fraud, cannot be framed).
4
Bhavana Adwani v Manohar AIR 1992 MP 105.
5
Dineshkumar v Neeta AIR 2005 MP 106
6
Sureshta Devi v Om Prakash AIR 1992 SC 1904; overruling Jayshree v Ramesh AIR 1984 Bom
302; Chandrakanta v Hans Kumar AIR 1989 Del 73; Meena v Anirudh Datta (84) 2 DMC (388)
(MP); Gurpinder Kaur v Ravinder AIR 2005 P&H 187 (divorce within few days of filing, not permissible).
7
Suman v Surendra Kumar AIR 2003 Raj 155.
8
Girija Kumari v Vijayanandan AIR 1995 Ker 159 (relying upon Sureshta Devi's case);Satyabhama v
Narendra AIR 1997 Ori 47.
9
Munesh v Anasuyama AIR 2001 Kant 355.
expressed by the Supreme Court has not been indorsed by a later Bench of the court.10 The court
held that the observations of the earlier Bench that consent should ensue till the culmination of
divorce proceedings were too wide, and that those observations ran counter to the language
employed by the legislature in s 13B(2). The Bench has urged a reconsideration of the earlier
view.
HAVE BEEN LIVING SEPARATELY
It is not necessary that the parties must be living in different places. What the expression would
seem to require is that they must be living apart, ie, not living with each other as husband and
wife. There can be cases where the parties may have been compelled to live in the same house or
premises and yet can be rightly said to be living separately. This may be due to force of
circumstances. The separation can be consensual or otherwise. 11
NOT BEEN ABLE TO LIVE TOGETHER
Living separately or not being able to live together cannot of course mean that it could be at the
mere whim or mere volition of the parties. The averments and facts of the case must be such that
the court would be satisfied that it was impossible for the parties to live together as husband and
wife, and had infact been living separately for the statutory period of one year or more.12 Both
the above terms have to be read in conjunction, and a duty is thereby cast upon the court to find
out whether in fact cohabitation has come to an end.13
LAWFUL COMPROMISE MAY BE RECORDED
The view has been taken under this section that after the amendment [ Marriage Laws
(Amendment) Act 1976] it is now possible for the court to dissolve a marriage by agreement
between the parties although none of the grounds on which a marriage may be dissolved by a
court, be found to exist, provided that the compromise is not in any manner illegal.14
SUBJECT TO THE PROVISIONS OF THE ACT
The initial words in the section would apply to both the sub-sections and not merely to sub-s (1).
It is submitted that the provisions of s. 23 so far as they may be relevant, can also apply to a
petition for dissolution of marriage by consent of the parties. The powers of the executing court
are limited to attachment of property of the defaulter if the decree of restitution is not obeyed.15
The satisfaction of the court, for instance, would require that the parties did not present the
petition in collusion. of course, the court must be satisfied that both the parties have truly and
freely agreed to the dissolution of the marriage.16 The court may refuse to grant a decree if it is

10
Ashok Hurra v Rupa Bipin Zaveri AIR 1997 SC 1266.
11
Kirit v Praful AIR 1993 Guj 111.
12
Sureshta Devi v Om Prakash AIR 1992 SC 1904 (indicative concept of broken down marriage and no
possibility of reconciliation).
13
Leela Joshi v Mahadeo AIR 1991 Bom 105.
14
Indramal v Radhey Raman AIR 1981 All 151 (appeal against decree for divorce-compromise pending
appeal-joint application to appellate court).
15
Vijay Kumar v Neelam Ram AIR 2004 Raj 256.
16
Krishnamurthy Rao v Kamalakshi AIR 1983 Kant 235.
not so satisfied. The court must also make every endeavour to bring about a reconciliation
between the parties as required by s 23(2). Consent decree under this section cannot per se be
challenged as collusive. That would depend on the facts of the particular case. A party is not
disentitled to get a decree for divorce on the ground that there was no cohabitation for one year
after a decree for restitution of conjugal rights simply on the ground that the decree was by
consent of parties under the present section.17
A decree obtained under this section by practising fraud can be recalled by the court in exercise
of its appellate powers. 18When, however there was no element of coercion present, the consent
decree cannot be recalled.19 Consent decree passed under this section or any other consent decree
is appealable.20
The court should make an inquiry into the allegations even if the application is one under this
section, it cannot be disposed off ignoring the statutory time limit.21
It has been held in the undermentioned case22 that sub-s (2) should be read as discretionary only.
It does not impose any fetter on the powers of the appeal court to grant instant decree of divorce
since the timetable fixed in it does not apply in any case to an appellate court. The time specified
in sub-s (2) can be waived, and a decree can be granted without waiting for the prescribed
period.
The Andha Pradesh High Court has, however, in a later decision, not followed the earlier
decision in K Om Prakash's case and has held that the provision, although it may be construed as
directory, and not mandatory, cannot be ignored by the High Court. 23This appears to be so, since
the time-period stipulated by the legislature, has been so fixed that during this time the parties
get time for introspection. The provisions of this section have been held to be directory and not
mandatory.24 The High Court of Punjab & Haryana has held that the period is mandatory and
cannot be waived in view of the fact that a petition for divorce had later been converted into a
petition under this provision25. This was a case of challenge to a consent decree on grounds of
fraud. The Karnataka High Court has expressed the view that a petition under this section is to be
filed before the original court and the High Court in exercise of its appellate jurisdiction, cannot
entertain a petition for divorce under this section by treating it as a miscellaneous application in
an appeal.26

17
Smriti Kana v Dalip Kumar AIR 1982 Cal 547.
18
Pushpalata v Damodar AIR 1987 Ori 1.
19
Anita v R Rambilas AIR 2003 AP 32.
20
Krishna v Satish Lal AIR 1987 P&H 191.
21
Kanchan Mohanty v Kulamani AIR 1992 Ori 165.
22
K Om Prakash v K Nalini AIR 1986 AP 167
23
Re M Sailaja AIR 1995 AP 325; Hitesh Joshi v Jesal Joshi AIR 2000 AP 362 (time period stipulated is
mandatory).
24
Roopa Reddy v Prabhakar AIR 1994 Kant 13.
25
Charanjit Singh Mann v Neelam Mann AIR 2006 P&H 201.
26
N Vijaya Raghavan v K Sharada AIR 2001 Kant 300.
Conclusion