Breaking away amicably: Divorce by mutual consent

Author: Shambhavi, Campus Law Centre, University of Delhi

Divorce, the judicial termination of a marriage, has historically been a lengthy and complicated legal contest, demanding evidence of fault. The sacramental nature of marriage was diluted with the parties permitted to bring it to an end during their lifetime even without citing any reason, except that they cannot live with each other. Divorce in India is regulated by the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954. They have provisions for the reasons on which divorce was permissible viz. Adultery, cruelty, desertion. However, with changing societal norms and a growing emphasis on individual freedom, the concept of mutual consent divorce was introduced. The provision has been designed and legislated in a manner that permits the spouses to avoid bickering and mudslinging in the court. The dignity of accepting a failed marriage is not required to have an additional ugly postmortem. It avoids unnecessary litigation, reduces emotional stress, and ensures a fair settlement.

The concept of mutual consent divorce was introduced in India through the 1976 amendment to the Hindu Marriage Act. Before this change, divorce was based on fault, meaning that one spouse had to prove the other’s misconduct. As a result, court battles were often lengthy and contentious, even when both partners wanted to separate amicably.

The amendment of 1976 introduced Section 13B allowing divorce by mutual consent for Hindus with the belief that it is better to put an end to an unhappy marriage rather than prolong the suffering of parties by an insistence on protecting the futile lifeless bond. It was also believed that if the best years of a person’s life are lost in the matrimonial mayhem, little is left for them of valuable time and its enjoyment. The amended provision requires a six-month separation period and a waiting period of six months before finalization. Similar provisions were introduced in the Special Marriage Act, 1954 under Section 28 for interfaith and civil marriages. Mutual consent divorce allowed couples to end their marriage amicably without allegations or blame. The amendment acknowledged that marriage is a voluntary union, and if both partners agree that their relationship is no longer working, the law should not force them to stay together. 

Even though the amendment of 1976 provided for divorce by mutual consent, several judicial precedents played a crucial role in shaping and interpreting the mutual consent divorce law in India. In the Sureshta Devi v. Om Prakash case of 1991, she withdrew her consent after filing for mutual consent divorce. The Supreme Court here held that mutual consent must continue until the decree is granted. If either spouse withdraws consent before the final hearing the divorce cannot be granted.

In the landmark judgement of Amardeep Singh v. Harveen Kaur in 2017, the Supreme Court ruled that the mandatory six-month waiting period under Section 13B(2) of the Hindu Marriage Act can be waived if the couple has been living separately for over 18 months and reconciliation is impossible. The Supreme Court emphasized in future judgments that the six-month cooling-off period should not become an obstacle if both parties genuinely want a quick divorce.

In a more recent ruling of X v. Y, 2023, the Supreme Court reiterated that courts can exercise discretion to grant mutual divorce even if one party withdraws consent, in exceptional cases where prolonging the marriage would lead to injustice.

For a mutual divorce to be granted, the couple must be living separately for at least one year before filing divorce and are unable to live together. One important box to be ticked is that both parties have voluntarily agreed to the divorce and there is an element of coercion, fraud, or undue influence in the decision. Both the parties filed a joint petition in the family court stating their decision to separate. The court records their statement and reviews documents, and a six-month cooling-off period is given. After the six months but within 18 months, the couple appears again and if both still agree to the divorce, the court grants the final divorce decree.

There are some key issues on which the couple must mutually decide upon before filing for mutual divorce-

• Alimony and maintenance

• Child custody

• Division of property and assets

So now a mutual divorce takes 6 months to 1.5 years without waiving the cooling-off period of six months and with waiver only 2-3 months.

Divorce by mutual consent minimizes emotional and financial strain while ensuring a fair settlement for both parties. This amendment not only made it easier for the couples to legally separate without prolonged emotional and financial distress but also reduced the burden on courts as contested divorces take years due to legal battles over evidence, counterclaims, and appeals. 

From being non-existent before 1976 to becoming a preferred method for separation today, mutual consent divorce in India has come a long way. The process has transformed from a fault-based system to one that recognized the autonomy and mutual agreement of both parties. By allowing couples to separate amicably it fosters a more dignified exit from relationships that are no longer viable. Despite these advancements, challenges remain, particularly when one party withdraws consent or when there are disputes regarding alimony, child custody, and property division. Future reforms may be necessary to address these complexities and ensure that mutual consent divorce remains a fair and equitable option for all couples seeking to end their marriage.

In conclusion, while mutual consent divorce has come a long way since its inception, ongoing dialogue and legislative refinement will be essential to adapt to changing societal norms and to protect the rights of individuals within this process.