Raj (executive) 13 June 2011

Mutual consent Divorce before one year of Marriage

Hello Friends,

I wanted to ask a very important question through this platform. My cousin got married 7 months ago. Now one month ago he caught her wife being involved and in relationship with someone else. From that they day they are living seprately(one month). Their family members have tried to resolve the issue and also gave threating calls that they will file false case on me and my family members. But now when they have realised that nothing can be done by hook or crook they finally have agreed for mutual divorce.

This is a question to all my seniors and collegeas that what all can be done in this case some facts are : It has been just 7 months of marriage and according to hindu law divorce cannot be done before one year of marriage. They asking for mutual divorce is there anything which can be done on paperwork and be taken as a valid divorce document for future reference. What could be the implication or impact if the divorce is not taken through the court and Girl or a boy gets married again? Please show me the best way which we can followed so that there will be no future problems!! Thanks in advance for your great help!!

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11 Replies

adv. rajeev ( rajoo ) (practicing advocate) 13 June 2011

your frnd can file consent divorce petition and seperate application for permission of the court to get divorce within one year. Consent dicvorce is better. If a man married second wife during the life time of the first wife it is an offence, but if lady got married then it is ground for divorce.

Pawan Kumar (Advocate) 15 June 2011

Dear Friend,

Before filing a petition for divorce under Hindu Marriage Act, 1955, whether it is by mutual consent or not, some points should be kept in mind like-

1. Sec. 14 of Hindu Marriage Act, 1955 put a bar that “no petition for divorce to be presented within one year of marriage” but the proviso to Sec.14 provide that if the case is of exceptional hardship, then the court has power to waive this bar on application.

So, in the instant case, it is barred by Sec.14 of Hindu Marriage Act, 1955 and if you want that, the petition to be entertained, you need to present an application under proviso of Sec.14 of Hindu Marriage Act, 1955.

2. The second point to be considered is that if we go for “divorce by mutual consent under Sec. 13B. of Hindu Marriage Act, 1955” it requires that both the parties to a marriage have been living separately for a period of one year or more (it is mandatory provision).

Thus in the instant case according to Hindu Marriage petition for divorce by mutual consent cannot be filed.

Kirankumar (Advocate) 16 June 2011

Dear Friend,

I am absolutely agreed with the opinion of the my friend Mr. Pawan Kumar, as per the Sec. 14,

We cannot file Petition for divorce within one year of marriage and for Sec. 13B there is stipulation in law that both the petitioner should have been living seperately from each other for at least one year at the time of filing the Petiton. After filing Petition it will be pending for atleast 6 month for counselling and then final Decree of Divorce will be Decreed.

Rajat Vyas (Lawyer) 04 January 2013

iam agree with mr pavan kumar....

Rahul Kapoor (Legal Enthusiast) 04 January 2013

hello,

ya you can file under the proviso.

but family court generally try to save the marriage.

regards-

rahul.gogreen@gmail.com

Raj (fr) 05 January 2013

can mutual consent divorce be filed before 1 yr of separation.If residing under same roof can it be considered separation if no relation.

Rahul Kapoor (Legal Enthusiast) 05 January 2013

hello,

mutual consent can filed on the ground that they have been living seperately for a period of one year or more.

no it will not be regarded as separation.

regards-

rahul.gogreen@gmail.com

1 Like

(Guest)

Hi Rahul

I think you are wrong.

Smoe expert please may comment.

Living under same roof but physically separated can be called as separaion.

It is not necessary to stay physically apart for 1 year.

Msk-need -nuetral- laws (self) 07 January 2013

Agreed at fighht_with_498a , raj look at in this same forum for same question lucidly replied by Rajiv_lotha and Bharath chug

rajiv_lodha (zz) 08 January 2013

Couple residing in same house, sharing same room may stil claim separation, no problem here IF BOTH AGREE TO ADMIT THIS SEPARATION.

But 1yr anniversary of marriage is necessary b4 couple applies in 13 b HMA

kesavamurthy (BABL) 01 May 2015

I differ from Mr. Pawan.

Section 13B(1) starts with " Subject to the provisions of this Act" whereas the Section 14(1) srats with "Notwistanding anything contained in this Act"

Hence, the Delhi High Court had dealt with a matter that the Divorce petition by muual consent under section 13B can be filed with in 1 year from the date of the marriage.

Other High courts differ from the said view.

I am of the opinion that Delhi High court's view is correct and more appropriate.

Even if a contesting matter where one party wants to go out of the wedlock and the other party wants to save the bondage, is permitted to filed within one year from the date of the marriage with the leave of the court, there is no point or resons to deny the same to the parties who feel it better to part away at the earliest without wasting time by mutual consent. Both parties can opt for choosing their respective partner at the earliest. Is it not unfair for the young people to waste their prime youth just because of the conflicting provisions of Law. More strange fact remains that both provisions of Law came through the same Amendment of the year 1976..

It is right time for the Apex court to clarify the correct position of law so as to minimise the mental agony of the young couple who decide to have their seperate future and also the Avocates who find it extremely difficult to advice them when approached.

Inspite of my hard efforts, I am not able to know whether the Delhi High Court's view is accepted or varied, or over ruled by the Apex court.

Any friends can share the view in the subject.