LawPage

Notes and Articles for Law students

User Tools

Site Tools


family_law:no-fault-divorce

What is a "no fault" divorce?

“No fault” divorce describes any divorce where the spouse suing for divorce does not have to prove that the other spouse did something wrong. Law allows divorces regardless of who is at “fault.” The couple cannot get along (this goes by such names as “incompatibility,” “irreconcilable differences” or “irremediable breakdown of the marriage”).

Section 13-B was not there in the original Hindu Marriage Act, 1955. It was introduced by the Amending Act 68 of 1976. Section 13-B provides as follows:

“13-B(l) Subject to the provisions of the 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, 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petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the Court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been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 the decree.“

It is also necessary to read Section 23(l)(bb) provides as follows:

“23(1) In any proceeding under this Act, whether defended or not, if the Court is satisfied that- (bb) When a divorce is sought on the ground of mutual consent, such consent has not been obtained by force, fraud or undue influence, and …..”

Section 13-B is in pari materia with Section 28 of the Special Marriage Act, 1954.

Sub-section (1) of Section 13-B requires the following conditions to be satisfied:

  1. The petition for divorce by mutual consent must be presented to the Court jointly by both the parties.
  2. Sub- section (2) provides for the motion before the Court for hearing of the petition by both the parties.
  3. The parties should have been living separately for a period of one year.
  4. They have not been able to live together, and
  5. They have mutually agreed that marriage should be dissolved.
  6. The 'living separately' for a period of one year should be immediately preceding the presentation of the petition. It is necessary that immediately preceding the presentation of petition, the parties must have been living separately. The expression 'living separately', connotes not living like husband and wife. It has no reference to the place of living. The parties may live under the same roof by force of circumstances, and yet they may not be living as husband and wife. The parties may be living in different houses and yet they could live as husband and wife. It is necessary that they have no desire to perform marital obligations and with that attitude they have been living separately for a period of one year immediately preceding the presentation of the petition.
  7. They 'have not been able to live together' seems to indicate the concept of broken down marriage and it would not be possible to reconcile themselves.
  8. They have mutually agreed that the marriage should be dissolved.

Section 13B (2) provides that 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 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 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. The period of 6 to 18 months provided in section 13B is a period of interregnum which is intended to give time and opportunity to the parties to reflect on their move. In this transitional period the parties or either of them may have second thoughts.

Now the issues are:

  1. Whether a party to a petition for divorce by mutual consent under Section 13B of the Hindu Marriage Act, 1955 can be permitted to unilaterally withdraw the consent? or
  2. Whether the consent once given is irrevocable.

These questions wre considered in the case of Sureshta Devi v. Om Prakash1). In that case the appellant is the wife of the respondent. They were married on 21 November 1968. They lived together for about six to seven months. Thereafter, the wife did not stay with the husband except from 9 December 1984 to 7 January 1985. On 8 January 1985, both of them came to Hamirpur. The wife was accompanied by her counsel. An hour of discussion was made between them. They moved a petition under Section 13-B for divorce by mutual consent in the District Court at Hamirpur. On 9 January 1985, the Court recorded statements of the parties and left the matter there. On 15th January 1985, the wife filed an application in the Court, inter alia, stating that her statement dated 9 January 1985 was obtained under pressure and threat of the husband and she was not even allowed to see or meet her relations to consult them before filing the petition for divorce. Nor they were permitted to accompany her to the Court. She said that she would not be party to the petition and prayed for its dismissal. The District Judge made certain orders which were taken up in appeal before the High Court and the High Court remanded the matter to the District Judge for fresh disposal. Ultimately, the District Judge dismissed the petition for divorce. But upon appeal the High Court has reversed the order of the District Judge and granted a decree for dissolution of the marriage by mutual consent. The High Court has observed that the spouse who had given consent to a petition for divorce cannot unilaterally withdraw the consent. Such withdrawal would not take away the jurisdiction of the Court to dissolve the marriage by mutual consent, if the consent was otherwise free. The High Court also recorded a finding that the wife gave her consent to the petition without any force, fraud or undue influence and therefore she was bound by that consent. Before dealing with the ratio decidendi of the Apex Court decision in the case of Sureshta Devi v. Om Prakash, AIR 1992 SC 1904, it would be relevant the earlier decisions of different High Courts.

In Jayashree Ramesh Londhe v. Ramesh Bhikaji Londhe2), it was that the crucial time for the consent for divorce under Section 13-B was the time when the petition was filed. If the consent was voluntarily given it would not be possible for any party to nullify the petition by withdrawing the consent. The court has drawn support to this conclusion from the principle underlying Order XXIII Rule 1 of the Code of Civil Procedure which provides that if a suit is filed jointly by one or more plaintiffs, such a suit or a part of a claim cannot be abandoned or withdrawn by one of the plaintiffs or one of the parties to the suit. Similar view was also taken in Smt. Chander Kanta v. Hans Kumar and Anr.3) and in Meena Dutta v. Anirudh Dutta.4)

The Kerala High Court in K.L Mohanan v. Jeejabai5) and the Punjab and Haryana High Court in Harcharan Kaur v. Nachhattar Singh6) and Rajasthan High Court in Santosh Kumari v. Virendra Kumar7) have taken a contrary view. It is held that it is open to one of the spouses to withdraw the consent given to the petition at any time before the Court passes a decree for divorce. The satisfaction of the Court after holding an inquiry about the genuineness of the consent, necessarily contemplates an opportunity for either of the spouses to withdraw the consent. The Kerala High Court in particular has ruled out the application of analogy under Order XXIII Rule I of the Code of Civil Procedure since it is dissimilar to the situation arising under Section 13-B of the Act. Those decisions were considered by the Apex Court in the case of Sureshta Devi v. Om Prakash.8) It is held as follows:

  1. The filing of the petition with mutual consent does not authorise the court to make a decree for divorce.
  2. There is a period of waiting from 6 to 18 months. This interregnum was obviously intended to give time and opportunity to the parties to reflect on their move and seek advice from relations and friends.
  3. In this transitional period one of the parties may have a second thought and change the mind not to proceed with the petition.
  4. The Section does not provide that if there is a change of mind it should not be by one party alone, but by both.
  5. The High Courts of Bombay and Delhi have proceeded on the ground that the crucial time for giving mutual consent for divorce is the time of filing the petition and not the time when they subsequently move for divorce decree. This approach appears to be untenable.
  6. The Court shall be satisfied about the bona fides and the consent of the parties. If there is no mutual consent at the time of the enquiry, the court gets no jurisdiction to make a decree for divorce.
  7. Mutual consent should continue till the divorce decree is passed. It is a positive requirement for the court to pass a decree of divorce. The consent must continue to decree nisi and must be valid subsisting consent when the case is heard“.
  8. The interpretation given to the section by the High Courts of Kerala, Punjab & Haryana and Rajasthan is correct and the Apex Court affirmed that view.
  9. The decisions of the High Courts of Bombay, Delhi and Madhya Pradesh are overruled.

About the Author

© C.R Nanda Academy is an initiative by Adv. Chittaranjan Nanda to spread legal awareness among Indian Citizens.

1) , 8)
AIR 1992 SC 1904
2)
AIR 1984 Bom. 302
3)
AIR 1989 Delhi 73
4)
1984 11 DMC 388
5)
AIR 1988 Kerala 28
6)
AIR 1988 Punjab & Haryana 27
7)
AIR 1986 Rajasthan 128


Navigation: Home»Family Law

Created on 2021/04/07 05:45 by LawPage • Last modified on 2021/04/09 22:12 (external edit)