13B Divorce by mutual consent – (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 solemnized before or after the commencement of the Marriage Laws (Amendment) Act 1976 (68 of 1976), on the ground that they have been living 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the petition referred to sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized 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 decree]
There are cases when parties wish to part happily, rather than indulge in accusations. Mutual consent, introduced in 1976, is a part of the legislative effort to ease the law of divorce, in accordance with the changed conception of marriage. Sec. 13B runs as under:-
Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the Family Court or District Court by both the parties to a marriage together, 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.
On the motion of both the parties made not earlier than 6 months after the date of the presentation of the petition referred to in subsection (1) and not later than 18 months after the said date, if the petition is not withdrawn in the meantime, the court shall on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized 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.
Section 23(1) (bb) provides that in any proceeding under this Act, whether defended or not , if the Court is satisfied that – when divorce is sought on the ground of mutual consent, such consent has not been obtained by force, fraud or undue influence, the Court shall decree such relief accordingly.
The essential ingredients of Section 13B read with Section 23(1)(bb) are –
(1) A joint petition by both the spouses stating :-
(a) that they have been living separately for a period of one year,
(b) that they have not been able to live together, and
(c) that they have mutually agreed to live separately.
The words ‘living separately separately’ only means not living as husband and wife. Thus they may live in the same room, yet live separately. What seems to be necessary is that they have no desire to perform marital obligations. “They have not been able to live together” means that there is state of complete break down of marriage.
(2) After the presentation of the petition, the parties are required to wait for 6 months though not for more than 18 months, and then to move a motion in the court that divorce be granted. Thus, between 6 to 18 months, after the presentation of first petition, the parties have to file a second petition.
(3) The parties are free to withdraw the petition at any time. If no motion is moved within 18 months, the petition shall stand dismissed. The period of 18 months is an upper limit for the withdrawal of the petition. But the court has power to grant divorce even after the expiry of that time or even before the expiry of 6 months if other conditions are fulfilled.
(4) The consent must not be obtained by force, fraud or undue influence.
(5) Collusion (Section 23(1)(c)) may be pleaded as a bar to petition for divorce on the basis of mutual consent.
A compromise application agreeing to divorce submitted by the parties can be a basis of divorce. In Sibnath Vs. Sunita, (AIR1989 Cal. 84) , the court observed that such a compromise is not unlawful, though petition should not be collusive. In Santosh Kumari Vs. Virendra Kumar , AIR 1986 Raj 128 a petition for divorce on the ground of cruely and desertion was alllowed to be converted into a petition for divorce by mutual consent, ingnoring the formality of a joint petition. Rajasthan High Court observed that “The mutual consent is a nature of compromise and the court has power to pass a decree in terms of that compromise. Order 23 Rule 3, C.P.C. empowers the Court to pass a decree in accordance with the terms of the compromise so far as it relates to the parties to the suit whether or not the subject matter of the agreement, compromise or satisfaction is the same as the subject matter of the suit. Even if the provision of Order 23, Rule 3 C.P.C. are not strictly applicable to the proceedings under Section 13B of the Act, the principle underlying it can certainly be invoked.”
The period of six to eighteen months time is given in divorce by mutual consent as to give time and opportunity to the parties to reflect on their move and seek advice from relations and friends. Mutual consent should continue till the divorce decree is passed. The court should be satisfied about the bona fides and consent of the parties. If there is no consent at the time of enquiry the court gets no jurisdiction to make a decree for divorce. 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. There can be unilateral withdrawal of consent. Supreme Court in Sureshta Devi Vs. Om Prakash, AIR 1992 SC 1904 held that since consent of the wife was obtained by fraud and wife was not willing to consent, there could be unilateral withdrawal, of consent.
No appeal against a divorce decree under Sec.13B shall lie unless the party finds himself or herself deceived.
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