Mutual Consent Divorce

Introduction

The Hindu Marriage Act, 1955, established a legal framework for marriage and its dissolution and governed matrimonial rules among Hindus in India. In particular, Section 13B of the Act addresses divorce by mutual consent, which permits spouses to peacefully dissolve their union when both parties concur that the marriage has irretrievably failed. This clause guarantees that divorcing couples can reach a mutually agreeable resolution to all concerns, including asset distribution, child custody, and other related topics, without having to engage in protracted litigation.

Section 13B of the Hindu Marriage Act, 1955 provides provisions for mutual divorce in India.

Divorce with Mutual Consent (Section 13B):

Subsection 1: Filing Petition: If both parties to the marriage have been living apart for a year or longer, have been unable to cohabitate, and have mutually decided that the marriage should end, they may file a petition for divorce jointly.

Subsection 2: First Motion: If the petition is not withdrawn in the interim, the court will, upon being satisfied that a marriage has been solemnised and that the allegations in the petition are true, after hearing from the parties and conducting any necessary inquiry, issue a divorce decree declaring the marriage to be dissolved with effect from the date of the decree. The motion must be made by both parties no earlier than six months after the date of presentation of the petition mentioned in subsection (1) and no later than eighteen months after the said date.

The explanation of Section 13B is as follows

Living Separately :

Prior to filing the petition, the parties must have lived apart for a minimum of a year. This implies that even if they might be living together because of external factors like lack of other housing options or social pressure, they shouldn’t be living as husband and wife.

Inability to Live Together:

In order to decide that the marriage should end, the couple must be persuaded that they are unable to coexist peacefully.

Mutual Consent:

The divorce must be approved by both parties. From the time the petition is filed until the decree is passed, there must be continuous mutual agreement.

Cooling-Off Period:

From the date of the first motion to the date of the second motion, there must be a minimum six-month waiting period. The purpose of this time frame is to give the couple time to think over their choice.

Second Motion:

Both parties shall jointly file a second motion affirming their intention to divorce within eighteen months of the date of the first motion, following the cooling-off period. During this time, the mutual consent divorce cannot move forward if one of the parties withdraws their consent.

Role of the Hon’ble Court:

The role of the court is to review the petition, hear arguments from both sides, and make sure that the requirements of living apart, being unable to live together, and mutual consent are indeed fulfilled. The court will issue a divorce decision if all parties are satisfied. The interest of the child/children is of paramount if there is any of the couple seeking and filing divorce.

Basic Steps to Take in Practice Applicable:

1. Drafting the Petition: A joint petition outlining the details of their separation and their mutual permission to divorce is written and signed by both parties.
2. Hearing on the First Motion: The court reviews the petition and takes notes on the statements made by each party.
3. Cooling-Off Time: The pair may have to wait no less than six months or more than eighteen months unless waive off by the hon’ble court.
4. Hearing on a Second Motion: A second appearance before the court confirms the mutual consent of the parties.
5. Decree of Divorce Granted: The marriage will be dissolved by a divorce decision issued by the court if it is satisfied.

Division of Assets in Mutual Divorce under Indian Law

The division of assets, including movable and immovable property, gold, “stridhan,” investments, and dividends, is an important aspect of divorce proceedings. In mutual divorce, the division is typically settled through negotiation and formalized in a settlement agreement. Here’s an explanation of how these assets are divided, with references to relevant Indian case laws:

1. Immovable Property: Immovable properties such as land, houses, and apartments are divided based on mutual agreement. Factors such as contributions made by each spouse, both financially and non-financially, are considered.

Example of Reference Case Law: B. P. Achala Anand v. S. Appi Reddy (2005): The Supreme Court held that the wife is entitled to her share of the property if she contributed towards its acquisition.

2. Movable Property: Movable properties include items such as vehicles, furniture, appliances, and other household goods. These are divided based on mutual agreement, considering ownership and usage.

Example of Reference Case Law: Vimla Devi vs. Jawahar Lal (1981): The court ruled that the distribution of movable property should be equitable and fair.

3. Gold and Jewelry : Gold and jewelry, particularly items given to the wife as part of “stridhan,” are typically retained by the wife. “Stridhan” refers to any property given to the woman before, during, or after her marriage, and it remains her exclusive property.

Example of Reference Case Law: Pratibha Rani vs. Suraj Kumar (1985): The Supreme Court upheld that “stridhan” is the absolute property of the wife and she has full rights over it.

4. Stridhan : “Stridhan” includes gifts, jewelry, and other valuables given to the wife at the time of marriage or during her married life. It remains her property and is not subject to division between the spouses.

Example of Reference Case Law: Rashmi Kumar vs. Mahesh Kumar Bhada (1996): The Supreme Court reiterated that “stridhan” is the woman’s absolute property and cannot be claimed by the husband or his family.

5. Investments : Investments such as stocks, bonds, mutual funds, fixed deposits, and savings accounts are divided based on mutual consent. The division considers the source of funds, contributions by each spouse, and the intended purpose of the investments.

Example of Reference Case Law: Ravinder Kaur vs. Anil Kumar (2000): The court stressed that investments made in joint names or individually should be divided equitably based on contributions and mutual agreement.

6. Dividends and Interest : Dividends from stocks and interest from savings accounts or fixed deposits are typically divided according to the ownership of the underlying assets. If the investments are joint, the dividends are usually shared equally unless otherwise agreed.

Example of Reference Case Law: Komal Kumar vs. State of Rajasthan (2002): The court emphasized fair distribution of all financial assets, including returns on investments, ensuring both parties’ interests are protected.

Practical Steps for Division:

1. Asset Inventory: Both parties prepare a detailed list of all assets, including movable and immovable property, gold, “stridhan,” investments, and dividends.
2. Valuation: Each asset is valued to determine its current market worth.
3. Negotiation: The parties negotiate the division of assets, taking into account contributions, ownership, and future needs.
4. Settlement Agreement: The terms of the division are formalized in a settlement agreement, which is signed by both parties.
5. Court Approval: The settlement agreement is presented to the court for approval as part of the mutual divorce petition.

Note: In India, consensual divorce involves careful asset distribution, with legal protections for “stridhan” and husband contributions. Cases like Pratibha Rani v. Suraj Kumar and Ravinder Kaur v. Anil Kumar provide precedents. Consult legal advice for complications.

Recent Developments:

1. Waiver of Cooling-period

The Supreme Court has allowed for the waiver of the mandatory six-month waiting period for mutual divorce under Section 13B(2) of the Hindu Marriage Act in certain cases where both parties agree, which can expedite the division of assets. This is based on the following key Supreme Court judgments:

A. Amardeep Singh v Harveen Kaur (2017): The Supreme Court held that the minimum 6-month cooling down period under Section 13B(2) can be waived off in cases of mutual divorce after considering factors like:

• Whether the statutory period of one year under Section 13B(1) of separation of parties is already over before the first motion itself.
• Whether all efforts for mediation/conciliation have failed and there is no likelihood of success in reuniting the parties.
• Whether the parties have genuinely settled their differences including alimony, custody of child or any other pending issues
• Whether the waiting period will only prolong their agony.

B. Amit Kumar v Suman Beniwal (2021): The Supreme Court added that in addition to the factors mentioned in Amardeep Singh, the Court should also ascertain whether the parties have freely, on their own accord, and without any coercion or pressure arrived at a genuine settlement which took care of the alimony, maintenance and custody of children, etc.

C. Shilpa Sailesh vs Varun Sreenivasan (2023): A Constitution Bench of the Supreme Court reiterated that it can invoke the special powers under Article 142 of the Constitution to dissolve a marriage on the ground of irretrievable breakdown, even if the 6-month waiting period under Section 13B(2) is not completed, if the parties have arrived at a genuine settlement.

These judgments have established that the Supreme Court has the discretion to waive the mandatory 6-month waiting period for mutual divorce under certain circumstances, especially when the parties have already lived separately for over a year, made genuine efforts at reconciliation, and arrived at a settlement regarding alimony, child custody and division of assets. This can help expedite the divorce process in appropriate cases.

2. Irretrievable breakdown of marriage

The Supreme Court of India has recognized ‘irretrievable breakdown of marriage’ as a valid ground for divorce in certain cases, even if it is not explicitly mentioned as a ground under the Hindu Marriage Act, 1955. This has been established through several key judgments:

A. Naveen Kohli v. Neelu Kohli (2006): The Supreme Court upheld the Family Court’s conclusion that the marriage was irreparably broken due to the husband’s psychological, physical, and financial abuse. The court recommended that the legislature amend the Hindu Marriage Act to incorporate irretrievable breakdown as a ground for divorce.

B. K. Srinivas Rao v. D.A. Deepa (2013): The Supreme Court held that the concept of irretrievable breakdown of marriage can be applied in cases where the parties have been living separately for a considerable period, and the marriage has broken down irretrievably.

C. Amardeep Singh v. Harveen Kaur (2017): The Supreme Court allowed for the waiver of the mandatory six-month waiting period under Section 13B(2) of the Hindu Marriage Act in cases of mutual divorce if certain conditions are met, such as the parties having lived separately for over a year and made genuine efforts at reconciliation.

D. Shilpa Sailesh v. Varun Sreenivasan (2023): A Constitution Bench of the Supreme Court reiterated that it can invoke its special powers under Article 142 of the Constitution to dissolve a marriage on the ground of irretrievable breakdown, even if the statutory requirements are not fully met, if the parties have arrived at a genuine settlement.

These judgments have established that the Supreme Court can exercise its discretion under Article 142 to grant divorce on the ground of irretrievable breakdown of marriage in exceptional cases, even if the statutory requirements are not fully met. This can potentially simplify the divorce process and influence how assets are divided when the marriage is beyond repair and the parties have arrived at a settlement.However, the Supreme Court has cautioned that this power should be exercised with great care and caution, considering factors such as the duration of the marriage, the period of separation, the nature of allegations, and the efforts made for reconciliation.

Points of discussion & Settlement Agreement

Here is a comprehensive list of the matters that need to be addressed in amicable divorce cases in India, along with the topics that should be included in the settlement agreement and potential concerns that may arise after the first motion is filed:

• • Things to Consider in Cases of Mutual Divorce
    1.  Start of Communication:The choice to divorce should be shared by both partners, and they should start initiate talkings about mutual consent.
    2. Discussion and Negotiation:

• • • Visitation and custody rights for children.
    • Asset distribution (movable and immovable).
    • Partition of obligations and debts.
    • Alimony/maintenance.
    •  Any further payments.
    • Partition of individual possessions.
    • Managing investments and shared bank accounts etc,.

3. Consultation Session: With Legal professionals to understand your legal rights and obligations by both parties.

4. A formal settlement agreement should contain the parameters that were agreed upon during the negotiation process.

Topics to be discussed & covered in the Settlement Agreement:

1. Individual Information like names, addresses, and any details that can be used to identify each party.
2. Child Support and Custody: Physical and legal custody arrangements, visitation privileges and timetable, the amount and timing of child support payments.
3. Asset Distribution: A comprehensive inventory of all the assets (real estate, cars, jewellery, etc.), allocation of every asset to the appropriate party, procedure and timeframes for ownership transfer.
4. Debt Distribution: a comprehensive list of obligations like assigning accountability for every loan.
5. Maintenance/alimony: The quantity and length of any required alimony payments, payment terms and schedule.
6. Joint bank account management and investment management, allocation of mutual funds, fixed deposits, and savings
7. Other: Partition of domestic goods and individual possessions, any additional agreements reached by the parties.
   1. Declaration of Consent to Divorce; Consent to Collaborate During the Lawsuit.
   2. Issues That Might Come Up After the First Motion Is Filed.
   3. Before the second motion, one side may withdraw consent, which could lead to delays or issues or even as a matter of contempt of the court.
   4. If one party doesn’t follow the settlement agreement’s conditions, problems could occur.
   5. Delays may arise from the required waiting period (also known as the cooling-off period) between the first and second motions.
   6. There may be disagreements over visitation or custody rights that call for additional legal action.
   7. Conflicts about the allocation of resources, obligations, or maintenance payments may arise, requiring the involvement of the court.
   8. The settlement agreement may be rejected by the court if it is deemed unfair or unreasonable, necessitating revisions or any other reasons as per the discretion of the Hon’ble court.
   9. Inaccurate or lacking paperwork may cause delays in the procedure.
   10.  Emotional stress can cause arguments and disputes between the participants, which makes things more difficult.

Note:  Professional counseling and consulting sessions are indispensable in the mutual divorce process. They ensure that all aspects are handled with care and expertise, reducing the risk of future conflicts and ensuring a smooth transition for both parties. By leveraging integrated methodologies, these professionals provide comprehensive support that covers legal, emotional, documentation, conflict resolution and financial needs, making the divorce process less daunting and more manageable.

Conclusion

Section 13B of the Hindu Marriage Act offers a pragmatic and humane approach to the dissolution of marriage, reflecting the evolving social dynamics and the need for quicker resolution of marital disputes. Recent judicial interpretations and amendments have further streamlined this process, emphasizing fair and equitable division of assets. By allowing mutual consent as a ground for divorce, the law not only respects the autonomy of the spouses but also promotes a harmonious post-divorce relationship. For couples seeking divorce, it is essential to engage in transparent negotiations and consult legal experts to ensure that their rights and interests are adequately protected in the settlement agreement.

Incase, You wish to discuss, and talk on any such matter that, ‘You may need help with’. Feel free to contact us.  Our team at  www.legalwellbeing.in shall be happy to assist.

You may want to refer, Mutual Consent Divorce -Settlement Agreement Draft under HMA Section 13B

Key Points to Remember About Section 13B of the Hindu Marriage Act

1. Mutual Consent Requirement.
2. Separate Living.
3. Cooling-Off Period
4. The second motion must be filed within 18 months from the date of the first motion to finalize the divorce.
5. Irretrievable Breakdown of Marriage and that there is no possibility of reconciliation.
6. Consent must remain mutual and persistent throughout the process. Either party withdrawing consent can halt the divorce proceedings.
7. The court must be convinced that the marriage was solemnized, the claims are genuine, and the consent for divorce is not coerced or fraudulent.
8. Asset Division must be mutually agreed upon by both parties before filing the petition.
9. Stridhan Rights -where the wife retains full ownership of her stridhan, which includes gifts, jewelry, and other assets received before, during, or after the marriage.
10. Most important, If children are involved, their well-being and custody arrangements need to be carefully considered and mutually agreed upon.

By focusing on these key points and engaging professional help, couples can ensure a smoother, more amicable divorce process under Section 13B of the Hindu Marriage Act.