Author-Satpathy Gayatree Geetaswaroop, Birla School of Law, Birla Global University, Bhubaneswar
INTRODUCTION
Marriage brings two people together and unites them as a life partner socially or legally or both which strongly establishes their rights, duties and obligations between them and definitely with their children. Marriage also involves emotional, mutual commitments, friendship, partnership, financial, social and legal duties. Marriage as a social and formal institution that has ‘n’ number of things apart from mentioned above included in it; among the spouses aiming to stay together, creating a healthy, stable and happy family. But sometimes, destiny has it’s own plans. Everything can’t never happen the way we want and same is for marriage. Disturbance between couples is a clear cut reflection of their disagreements, miscommunications, misunderstandings and emotional distance etc. Ill arguments leading to separation of spouses is a common scenario. Some face very hectic separation, on the other hand some opt for mutual divorce on the ground that they were unable to live together and mutually agreed to dissolve the marriage.
Keywords:Consent, Mutual agreement, Joint petition, Divorce, Hindu law
MEANING:
In simple words; spouses seeking or getting divorced with mutual agreement or consent.
EXPLANATION:
Mutual divorce or divorce by mutual consent is a process where both the parties or spouses in a marriage agree together to terminate their marital relationship amicably and legally as a result they file a joint petition in the court expressing their will to dissolve their marriage in which it is mentioned that, both the parties have agreed mutually to get separated due to incapability or incompatibilty to stay together.
EVOLUTION OF DIVORCE IN HINDU MARRIAGE LAW:
From the ancient times, marriage in Hindus has always been considered as pious, sacramental form of union between two opposite genders; i.e. a man and a woman. The concept or idea that lies behind marriage in Hindus is to stay committed and dedicated for lifetime cooperating with all ups and downs while maintaining love, harmony and togetherness. Divorce was neither a choice nor an option for the spouses at that time as they were bound to fulfill their commitments regardless of any obstructions in their marital relationship. Legal Hindu textbook ‘Manusmirti’ has never explicitly talked about divorce as the belief of a persistent marriage was practiced.
Slowly and gradually as the society grew and evolved, laws needed amendments too. When it comes to divorce laws in India, the Indian society has never made itself broad enough to accept a divorced couple; especially a divorced woman. Legalising divorce was definitely a challenge for the Indian law but also a great and effective move to make the Indian society evolve in a much better way resulting in women empowerment and evolvement of law in all aspects. Hence the Hindu Marriage Act 1955 was enacted approving divorce laws in India.
WHAT CAUSED TO LEGALIZE DIVORCE IN INDIA?
In India it was observed that individuals in a marital relationship were facing issues to continue their marriage further and if they wanted to do so, there was no proper way or a channel to follow to get separated. There were women who suffered a lot mentally, physically and emotionally by staying in a disturbing marriage. According to various surveys, women didn’t get the life that they had thought of before getting into a marriage. They even mentioned that, the married life they entered into was just only a one day of celebration and not a lifelong commitment. Not only women, men were also facing various issues regarding their bitter relationship with their wives which ultimately gave rise to bring divorce laws in India.
PROVISIONS TO DISSOLVE A MARRIAGE UNDER HINDU LAW:
- A solemnized marriage on the interest of the parties or the spouses can be dissolved by Judicial separation and Divorce under the Hindu Marriage Act, 1955 (HMA).
- JUDICIAL SEPARATION UNDER HMA, 1955: Judicial separation is considered lesser cruel than divorce because it has chances of reconciliation. It is not dissolution of marriage rather it suspends all marital duties, rights and obligations of the parties; the husband and the wife. Judicial separation has been mentioned under section 10 of the Hindu Marriage Act, 1955 in which it is stated that, either of the party if want can present a petition before the court of law stating for a decree of judicial separation on any of the grounds suitable to the party mentioned u/s 13(1) and 13(2) of them HMA. Once the decree of judicial separation is passed, parties or the spouses are no longer obligatory to stay together.
- DIVORCE UNDER HMA, 1955: Divorce has been mentioned under section 13(1) of the Hindu Marriage Act, 1955 which states that any marriage solemnized before or after the enactment of this act, the parties in the marriage can dissolve their marriage by a decree of divorce on presenting a petition; any of the either spouse can present the petition. The following grounds should be kept in mind to file a divorce petition:
- Adultery: u/s 13(1)(ia); having or had voluntary sexual intercourse with any other individual other than his or her spouse.
- Cruelty: u/s 13(1)(ib); this includes both mental cruelties in which the exchange of thoughts, kindness, and understanding gets lost between the partners resulting in adverse issues disturbing the mental and physical cruelty; where one of the spouses causes injuries on body of the other spouse making her or him weak to do any task physically.
For example-
- communication gap between husband and wife
- disrespecting either of the spouse even by a mini humour
- not respecting either of the spouses family
- indecent and indiscipline lifestyle of either of the spouses
- Conversion: 13(1)(ii) states that either of the spouse has ceased to be Hindu by conversion to any other religion
- Unsoundness of mind: u/s 13(1)(iii) either of the spouse had unsound mind, or suffering constantly from mental disorder to a such extent that it made difficult for either of the spouse to live with him or her.
- Veneral Disease: u/s 13(1)(v) states either of the spouse can seek for divorce if any one of them is suffering from a communicable venereal disease.
- Renounciation: 13(1)(vi) says that either of the spouse has renounced the world.
- Assumption or Presumption of death: 13(1)(vii) states if either of the spouse has not been heard of being alive for seven years or more and this information is authorized in regarding who might have heard it naturally.
DIVORCE BY MUTUAL CONSENT UNDER HINDU MARRIAGE ACT, 1955:
This is probably the best and the most advisable ground to take a divorce. Divorce by mutual consent was inserted by (Act 68 of 1976, Section 8). In HMA it has been mentioned under section 13(B) where it states that parties can jointly file a petition before the district court on the following grounds mentioned:
- Living separately for a period of one year or more: Here “living separately” means that parties were not anymore living as a husband and wife neither under the same roof or different houses.
- Had not been able to live together: This means breaking of marriage irretrievably.
- Mutually agreed to dissolve the marriage: Decided to have a mutual settlement amicably.
- PROCEDURE: Grounds mentioned above in point ‘G’ of this article shows the eligibility to file petition for divorce. Keeping these grounds in mind there’s a hierarchy for the parties to follow to get divorced, which are as follows:
- After presenting the petition, parties need to wait for six months but not more than eighteen months.
- Six months from the date of petition presented and not later than eighteen months after the date has been declared.
- The parties need to move a motion in the court stating that a decree of divorce to dissolve their marriage be passed.
- The parties are absolutely free to withdraw their petition but this is only possible within the period of six to eighteen months and not after that.
- If not withdrawn, the Court will be satisfied that the parties don’t want to continue their marriage further and the facts mentioned in the petition are true, the decree of divorce will be passed effectively from the date of decree.
Note: The motto of providing six to eighteen months (also known as cooling-off period) to the spouses or parties to make them reconsider about their marital relationship dissolution; if they ever think to change their minds to re-unite, they have to do this within the period of six to eighteen months given to them.
UNILATERAL WITHDRAWAL OF CONSENT BY ONE PARTY IN MUTUAL DIVORCE:
Yes, in a case the Delhi High Court in 2018, held that either of the party can unilaterally withdraw his or her consent not to opt for mutual divorce only in exceptional cases with valid and reasonable grounds.
LANDMARK CASE LAW:
- Manish Goyal vs Rohini Goyal (2010) 4 SCC 393
Facts of the case:
Both the parties; Manish and Rohini filed a petition for divorce by mutual consent and satisfied the court that there is no chance of reconciliation and they both strongly agreed the facts metioned in their petition where as subsequently submitted another application to the court to waive of their six month timeline for filing the final petition to get divorced. The District Court denied it and eventually the petition was presented in the Supreme Court.
Issues raised in the case:
- Whether the timeline of six to eight months specified in section 13-B(2) of the Hindu Marriage Act,1955 is mandatory?
- Whether the waiving off the six-month window period is only mandatory in exceptional cases?
Judgement:
The Supreme Court held that, legal requirement of waiting for six months before granting divorce under section 13-B(2) in the Hindu Marriage Act, 1955 is not mandatory but directory.
However, the Supreme Court also mentioned that power to unwind the mandatory requirement of six months waiting period can only be exercised by the Supreme Court only under Article 142 of the Indian Constitution in which “extent of executive power of State” has been stated.
CONCLUSION& COMMENTS
Divorce has always been considered as the most disturbing phase for any couple in their whole marital life. It has adverse effects on families of the spouses including their children but sometimes situation can be worst to a such extent that termination of marriage becomes the only solution to solve the problem.
The Hindu Marriage Act, 1955 has various provisions for individuals whether it is a man or a woman that wants to get divorced and in this act it has given, meaning, explanation and definition, procedure, precedents and theories supporting dissolution of marriage. The Hindu Marriage Act wisely and reasonably justifies remedies for spouses getting divorced. Resolving disturbance or disputes between spouses in not an easy task but legislation did its best to give some relief to the spouses or the parties.
Last but not the least, divorce by mutual consent is by far the most amicable way of handling and tackling a serious issue like divorce.
REFERENCES
- Books / Commentaries / Journals Referred
- Family Law, Dr. Paras Diwan
- Online Articles / Sources Referred
- Indian kanoon
- SCC online
- Cases Referred
- Raj Vinod vs Smt. Durga Devi 2002
- Jayashree Vs Ramesh, AIR 1984 BOM HC
- Santhosh Kumari vs Virendra Kumar AIR 1986
- Akhil Kumar Jain vs Maya Jain (2009) 10 SCC 415
- Ajay Bhikulal Gujar vs Shyamati Gujar AIR 2021 SC 3341
- Kaizer Basu vs Mahua Basu AIR 2014 Cal 180
- Davinder Singh Narula vs Meenakshi Nangia AIR 2012 SC 2890
- Statutes Referred
- Hindu laws (Bare Act)
- The Constitution of India (Bare Act)
- The Marriage Laws (Amendment) Act, 1976
- Indian Divorce (Amendment) Act, 2001
