Introduction
Marriage is an institution in which two people come together to plan and live their lives together for the rest of their lives. Marriage[1] is one of the oldest rituals practised around the world.
Marriage is the oldest practised tradition in Hinduism. It is a wedding that ties two families together in a life-long bond. In Hinduism, marriage is regarded as the beginning of a new life as well as the end of the Brahmcharya life and the beginning of the Grihastha life.
As stated above, the Hindu Marriage Act, 1955[2], defines marriage as an institution in which a man and a woman come together on their own will and not with coercion, undue influence, or any such mental pressure.
They can choose their partner and marry according to their wishes, and the same is true for parting ways.
Throughout this relationship, both men and women are required to live together, and between that time, if any of the parties feels or cannot actually work out the relationship, it leads to sourness in marriage. This situation causes a new level of stress and tension not only for those two people, but also for those who are directly or indirectly associated with them. Both parties are provided with the right to dissolve their marriage, i.e., divorce each other, and live their lives as they wish to.
We will be briefly discussing the certain particulars of Section 13 & 13-B[3] and, along with that, there will be a brief view about what the section deals with as well as its great aspect on how, if both the parties’ consent to live separately, what will be the further procedures, hence, required to be followed.
Hindu Divorce Under the Hindu Marriage Act, 1955
Because laws needed to be amended over time, when Hindu law was enacted, there were provisions that discussed the issue of divorce under Section 13[4] of the Hindu Marriage Act, 1955.There are certain grounds under which one can or any party can file for divorce, as follows:
- One can file for a divorce if any of the parties in the marriage commit adultery against any other party.
- On the desertion of any party in a marriage, one can file for a divorce, as marriage calls for the participation of both parties.
- As for being a victim of cruelty committed by a party in a marriage, there is no such definition of cruelty, as for different people there is a different level of cruelty.
- If one gets affected by a disease such as leprosy or any kind of venereal disease, then the other party can file for divorce.
Apart from that, if one or both the parties do not want to continue the marriage without any such specific ground as stated above or are unable to participate in the marriage, then under section 13-B of the Hindu Marriage Act, 1955, both the parties can file for divorce. Under this section of 13-b[5], both parties can call for the end of their wedlock with mutual consent. There is no involvement of any court proceedings in such a dissolution of marriage, and the uglier aspects of civil litigation can be avoided.
MUTUAL DIVORCE[6]
When in a marriage, if both the parties participating in the marriage consent to dissolution, then divorce under Section 13-B of the Hindu Marriage Act, 1955[7] can be proceeded. There should not be any scope left in the institution of marriage for divorce to be granted. After hearing the contentions from both the parties, the parties go through a counselling procedure as well as a cooling period after which both the parties can dissolve the marriage, if there has not been any hindrance during the entire time as afore-mentioned.
MUTUAL DIVORCE ESSENTIALS[8]
There are certain conditions under which the marriage can be dissolved under section 13-B. They are:
- The divorce should be filed with the consent of both the parties, or simply, there should be mutual consent. Like both parties, they should not have been forced to dissolve the marriage for any reason. For instance, in some cases, both couples can be forced to divorce each other by other societal members or by their family members.
- Prior to the final dissolution of a marriage in India, courts mandate the process of counselling in the family court, so that both parties have enough time to decide and make such a major decision.
- Both parties must have been living separately for at least a year or more.
In the landmark case of Sureshta devi V. Om Prakash[9], the case was of mutual divorce. The Hon’ble Supreme Court stated that living separately does not mean that both a man and a woman should not live under the same roof. Even if both parties are living in the same room but do not have any specific sort of one-on-one interaction, then that condition can also include the third aspect as stated above.
Withdrawal of mutual consent[10]?
Can any party withdraw their mutual consent at the time of dissolution of marriage?
Yes, during the time when divorce proceedings take place, both parties are required to sign certain essential documents. In that document, there is also a verification form that verifies that both parties are consenting to the divorce and that documents cannot be withdrawn unless the final divorce is done. Before that, when divorce is in the process or at the time of divorce proceedings, one can withdraw the consent so given.
The same facts were witnessed in the case of Sureshta Devi v. Om Prakash[11]. The husband, Om Prakash, fraudulently drew consent from the wife and then, when the act came to the intellect of the wife, her consent was withdrawn.
Apart from that, after a divorce is final, it becomes irrevocable.
What happens if one stays silent at the time of consent?
If one stays silent when prior consent is given, then consent is not assumed to be withdrawn. When prior consent is given, the “yes” become silent. Then the consent is not assumed to be withdrawn. After the divorce is filed, 6 months are provided to both parties so that they can rethink the procedure. That period is called the “cooling period,” after the end of which, within 18 months, divorce is finalised.
If during that time, either of the parties withdraws consent, then the divorce is revoked. But if both the parties stay silent about the consent, then it is assumed that they are consenting to the divorce, hence the divorce is finalised.
The same happened in the case of Suman v. Surendra Kumar[12].
As stated above, the wife stayed silent throughout, and when the divorce was finalized, she claimed that she did not consent to this and stayed silent.
The apex court then stated in its decision that if one remains silent at the time of consenting, it should be assumed that one is consenting in favour[13].
Conclusion
Prior to the time of civilisation, marriage was not a term for people, so people who contributed to population generation had a herd instinct for marriage. Due to this, the paternity of the father was never justified. As a result, women who were pregnant up to birth and after birth maintained the children. As a result, this exploitation needed to be extinguished.
In the process of exhaustion of such practices, marriage was introduced, in which both the male and female had to choose a partner, and after marriage, they could establish sexual relationships. They could live together and have children. When this tool was used, some people chose it as a tradition and made it a process of sacrament. On the other hand, some people chose it as a contract, after which both man and woman could formulate a family. Parents chose their child’s partner in both Hindu and Muslim traditions, and because the practise was new, people believed that breaking such relationships would bring defamation to their family.But later on, with the passage of time, people became aware of modernisation, and hence it became essential to amend and change the old practised law.
We also discussed mutual divorce, under which we discussed mutual consent as well as the concept of living separately for a year or over a year. We also had a briefing about the landmark case of Sureshta devi V. Om Prakash[14], which established an exception and widened the meaning of “living separately”.
[1]Institution of marriage, its purpose and significance – Neeta Singhal (sakhashree.com)
[2] Hindu Marriage Act, 1955 – Wikipedia
[3] Divorce By Mutual Consent Under Hindu Marriage Act (Section 13B) (lawcorner.in)
[4] ibid
[5] Section 13 in The Hindu Marriage Act, 1955 (indiankanoon.org)
[7] Ibid
[8] ibid
[9] Sureshta Devi vs. Om Prakash Case Summary 1991
[10] ibid
[11] Ibid
[12] Suman v Surendra Kumar on 30 August 2002 – Judgement – LawyerServices
[13] ibid
[14] ibid
Author’s Name- Shivani Sharma (NRI Vidhyadaini institute of Sci. Mgmt. Tech. Bhopal)
