S.B _Kolkata (Service) 11 February 2010

Divorce in mutual consent

Divorce in mutual consent- Please explain the said fact in details.

4 Replies

N.K.Assumi (Advocate) 12 February 2010

To put it in simple way: In a terrible mistakes of marriage divorce by mutual consent can be obtained either by Husband or Wife as per Section 13 B of the Hindu Marriage Act, 1955. This provisions require that the husband and wife should be living separately for a period of more than 1 year and they are not able to live together any further in other words the marriage was a terrible mistakes. The expression "Living Separately" defined by the Supreme Court is "not living as husband and wife and not performing marital obligations even if they live under the same roof". I am of the view that even if the husband and wife are living under the same roof what is the used of two persons living under the same roof in the name of marriage when they lived like a total strangers as marriage is not made of roof and walls it will only remain as a House not a Home? A joint petition has to be filed in this regard and after the filing of the same the Court grants a minimum period of six months (and maximum 18 months) for the parties to come again and make a statement confirming the said consent. It is only after this second consent having been given by both the parties after six months of the filing of the petition for mutual consent, that a decree for divorce is passed by the Court. If during this period of six months after the filing of the petition, any of the parties withdraws the consent, the divorce can not be granted. Further, apart from the same, before passing a decree of divorce, the court has also to be satisfied that the consent has not been obtained by force, fraud or undue influence. With regard to the re-marriage after divorce, Section 15 of the Hindu Marriage Act, 1955, provides that after a decree of divorce has been granted, in case there is no right of appeal against the decree or if there is a right, the time has expired without an appeal having been presented or if the appeal filed has been dismissed, it shall be lawful for either party to marry again. The period of appeal as provided under Section 28 of the Hindu Marriage Act is 30 days from the date of the decree or order.