Divorce by mutual consent

Under Indian law, divorce by mutual consent allows both spouses to dissolve their marriage without any conflict. The inherent cost-efficiency of a non-contentious divorce process, in addition to the judiciary adopting a progressive stance on marriage and divorce, has established this as a preferred mode for couples seeking to end a marriage amicably.

This is a significant shift from the traditional divorce practices in Hindu tradition, where marriage was considered a sacrament and divorce was frowned upon; however, as the country's legal system evolved, the concept of divorce was formalised through amendments to various marriage and family laws. While the concept of dissolution of marriage by mutual consent has been part of the Special Marriage Act, 1954¹since its inception covering marriages between individuals of different religions or those choosing to marry under the secular law, it was introduced in the personal laws for Hindus in 1976 under Section 13B of the Hindu Marriage Act, 1955 (HMA);²for Parsis in 1988 under Section 32B of the Parsi Marriage and Divorce Act, 1936;³and for Christians in 2001 under Section 10A of the Indian Divorce Act, 1869.⁴These changes have made it easier for spouses to end their marriages amicably without prolonged conflict.

Under Section 13B of the HMA, the key requirements for a petition for divorce by mutual consent are as follows:

• 1 year of separation: The couple must have been living separately for at least 1 year before filing the petition. The term 'living separately' denotes a lack of cohabitation as husband and wife with no desire to perform marital obligations, even though they need not be physically living in different houses⁵. This period of 1 year is mandatory and cannot be curtailed or waived by any Court.⁶
• Parties are not able to live together: Both parties must agree that their marriage has broken down and they no longer wish to live together as husband and wife.
• Mutual agreement: Both spouses must voluntarily consent to the divorce. The consent must be free from coercion, duress, or undue influence.⁷
• 6-month waiting period: After the petition (first motion) is filed with the Family Court, the HMA provides a 6-month cooling-off period to allow the couple time to reconsider, after which the parties must file the second motion.⁸However, upon mutual request by the parties, the concerned Court has the discretion to waive the mandatory 6-month period between the first and second motion, if the marriage is causing unnecessary hardship and there remains no possibility of reunion and cohabitation.⁹

Similar provisions exist under the Indian legal framework for marriages in different religions. Akin to the provisions of the HMA, the concept of 'Mubarat' or 'Khula' divorce under Islamic law allows for divorce by mutual consent between spouses, without any unilateral pronouncement of 'Talaq' by the husband or by a decree for dissolution of marriage by the Civil Court under Section 2 of Dissolution of Muslim Marriages Act, 1939¹⁰instead, this divorce is based entirely on the agreement between the spouses, allowing for a more cooperative and conflict-free approach.

Likewise, the Indian Divorce Act, 1869, was amended in 2001 to allow Christian couples to divorce by mutual consent under Section 10A, which, however, stipulated 2 years as the minimum mandatory period for the couple to be living separately. A Division Bench of the Kerala High Court, in the case of Saumya Ann Thomas v. Union of India,¹¹held that the stipulation of the 2-year period is arbitrary and oppressive, and reduced this to 1 year, in line with the provisions under other personal laws like Section 13B(1) of Hindu Marriage Act, 1955 and Section 32B(1) of Parsi Marriage and Divorce Act, 1936. The Indian Divorce Act, 1869 permits the grant of divorce on fault grounds (such as non-consummation of marriage, adultery, conversion, etc) even before the expiry of 1 year from the date of their marriage without any waiting period under Section 10. The Kerala High Court, in Anup Disalva v. Union of India¹², noted that a couple may be able to obtain divorce within a period of 1 year of marriage on recognising the existence of a fault ground and by not contesting the same, but not if the couple have shown wisdom, to avoid stigma, and sought divorce by mutual consent under Section 10A due to the 1-year period specified for living separately. Observing this arbitrary differentiation, the Court struck down the waiting period of 1 year under Section 10A as being unconstitutional and violative of fundamental rights, permitting couples to file for divorce by mutual consent immediately.

Along similar lines, Section 28 of the Special Marriage Act, 1954 allows inter-faith couples to jointly file for divorce before the District Court after living separately for 1 year or longer, provided they both mutually agree that the marriage should be dissolved. Likewise, Section 18 of the Foreign Marriage Act, 1969, addresses divorce by mutual consent for marriages solemnised outside India where at least one party is an Indian citizen. However, an exception exists under Parsi law, which does not require any cooling-off period after the institution of the petition for divorce by mutual consent under Section 32B of the Parsi Marriage and Divorce Act, 1936.

Over the years, mutual consent divorce has become widely accepted in India. To ensure a smooth process, parties are advised to maintain clear communication, prepare a detailed settlement agreement covering aspects such as alimony, child custody, and property division, and seek independent legal counsel to safeguard their interests. Further, it is crucial that consent remains voluntary and informed throughout both motions of the proceedings. With proper preparation and mutual respect, divorce by mutual consent can serve as a dignified and effective resolution to marital breakdown.

Footnotes

¹Section 28

²The Hindu Marriage Law (Amendment) Act, 1976

³The Parsi Marriage and Divorce (Amendment) Act, 1988

⁴ The Indian Divorce (Amendment) Act, 2001

⁵Sureshta Devi v. Om Prakash, (1991) 2 SCC 25; Gaurav Kapoor v. Komal Babbar, 2013 SCC OnLine Del 5040

⁶Vishal Kushwaha v. Raghini Kushwaha, First Appeal No. 950 of 2021 (Madhya Pradesh High Court, Jabalpur); Arpit Garg v. Ayushi Jaiswal, 2019 SCC Online All 5521; Amardeep Singh v. Harveen Kaur (2017) 8 SCC 746

⁷Swantantra Ved Sahni v. Santosh Kumari, 1988 SCC OnLine Del 48

⁸ Amardeep Singh v. Harveen Kaur, (2017) 8 SCC 746

⁹Shilpa Sailesh v. Varun Sreenivasan (2023) SCC OnLine 544

¹⁰ Zohara Khatoon v. Mohd Ibrahim, (1981) SCC 2 509

¹¹ 2010 SCC OnLine Ker 5197

¹² 2022 SCC OnLine Ker 6415