Marriage is solemnized in heaven as also divorce is destined in heaven or so it is said. This belief is just to appease to the couple whose marriage breaks down, apparently due to mutual consent, and but in reality it is due to unavoidable circumstances in which the couple finds itself. The decision is not truly voluntary but consequences of circumstances, may be it be ordinarily called, due to as temperamental disharmony. No individual has plan for divorce at the time of solemnization of marriage. It is result of circumstances. The thought of being alone or separate without better half spouse would ease out all the problems, though not always true, weighs more heavily in the minds of spouses that are motivated for deciding that they will depart by mutual consent.
Hindu law permits free will, without court approval, for marriage but does not permit divorce without courts approval. It probably emanates from the disbelief of so called rational decision of the couple and considers that divorce by mutual consent may be result of irrational decision and impulsive action. Law believes that the decision of couple to divorce the marriage is more often amenable to reversal once the crisis gets over. It therefore provides for detailed procedure for divorce by mutual consent and that also is provides that I shall be through court. Although registration of marriage is voluntary, the divorce is invariably by approval and decree of Court.
In the area where Family Court is not established under Family Court Act 1985, Civil Judge entertains Petition for divorce by mutual consent and as matter of fact entertains all family matters, be it divorce on any other ground than mutual consent, or petition for maintenance.
Any claim of a party that he has divorced his or her spouse by any other arrangement than decree of competent court is not legal and has no legal consequences. Any person claiming to be divorced of his spouse in respect matrimonial relationship on any other arrangement than by way of decree of competent court is not sustainable in law.
Provisions for divorce by mutual consent are found in Hindu Marriage Act 1955.
Section 13 B of Hindu Marriage Act 1955 provides for divorce by mutual consent.
The pre-requisite for obtaining decree of divorce by mutual consent are:
(a) Petition must be presented by both the parties to marriage;
(b) That the parties have been staying separately for more than one year;
(c) The parties have not been able to live together;
(d) The parties plead that they have mutually agreed that their marriage should be dissolved.
(e) Petition is presented not earlier than one year from the date of marriage.
A Court of competent jurisdiction there upon motion (application) being made by both the parties at any time after six months , but before eighteen months from the date of presentation of petition, will make proper enquiries as it may deem fit. It is incumbent upon the Court to verify that the statements made in the Petition are true. This requires the Court to verify, by examination on oath, whether they have consented to dissolve their marriage, as stated in Petition. After making necessary enquiry into the facts that marriage was solemnized , that the parties have not withdrawn the joint petition in the meantime, and that their consent continues, as stated in the Petition, on the day of examining the parties on oath. The Court has to satisfy itself about the genuineness of the averments in the petition and also to find out whether theconsent was not obtained by force, fraud or undue influence If the court is satisfied that theconsent of parties was not obtained by force, fraud or undue influence and they have mutually agreed that the marriage should be dissolved, it must pass a decree of divorce. Thereupon, the Court will declare by decree that the marriage solemnized between the parties are dissolved.
After presentation of the Petition for divorce by mutual consent, either of the parties may retract his or her consent at any time or at the time of examination on oath and thereupon the Petition shall be dismissed.
It therefore follows that the parties even when having stated in the Petition that they have decided to dissolve their marriage by mutual consent, have opportunity to retract or withdraw the consent at the time of examination on oath by the Court. The period of consideration of the petition only after six months of the presentation, imply that the parties are having opportunity to re think on the decision of divorce and law gives ample opportunity to save marriage.
However, it is incumbent upon the parties to move before the Court before eighteen months from the date of presentation of the Petition for divorce. The Court is not bound to pass decree of divorce by mutual consent after a period of eighteen months for the date of presentation of the Petition.
In Smt. Sureshta Devi v. Om Prakash, (1991) 2 SCC 25 the Apex Court has held that `living separately’ for a period of one year should be immediately precede 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. What seems to be necessary is that they have no desire to perform marital obligations and with that mental attitude they have been living separately for a period of one year immediately preceding the presentation of the petition. The meaning of the words in the Act that they `have not been able to live together’ indicates the concept of broken down marriage and it would not be possible to reconcile themselves.
There is a period of waiting from 6 to 18 months from the date of presentation of the Petition for the Court to consider the Petition. This interregnum is intended to give time and opportunity to the parties to reflect on their move and seek advice from relations and friends. In this transitional period one of the parties may have a second thought and change the mind not to proceed with the petition. If there is a change of mind by any of the party , Petition cannot succeed. It is not necessary that change of mind should be by both. Mutual consent has to be in existence at the time of presentation of the Petition and as also at the time when the parties move before the Court for obtaining decree. At the time of the petition by mutual consent, the parties are not unaware that their petition does not by itself snap marital ties. They know that they have to take a further step to snap marital ties.The provisions of Sub-section (2) of Section 13-B are clear on this point. It provides that “on the motion of both the parties. … if the petition is not withdrawn in the meantime, the court shall … pass a decree of divorce …”.It is therefore clear that either party can withdraw consent.
In Civil Appeal no. 6288 of 2008 in case of Hitesh Bhatnagar Versus Deepa Bhatnagar decided on 18.4.2011 the Apex Court has held that If there is no mutual consent at the time of the enquiry, the court gets no jurisdiction to make a decree for divorce. It is only on the continued mutual consent of the parties that a decree for divorce under Section 13-B of the said Act can be passed by the court.
If petition for divorce is not formally withdrawn and is kept pending then on the date when the court grants the decree, the court has a statutory obligation to hear the parties to ascertain theirconsent . From the absence of one of the parties for two to three days, the court cannot presume his/her consent . It is only the mutual consent of the parties which gives the court the jurisdiction to pass a decree for divorce under Section 13-B. So in cases under Section 13-B, mutual consent of the parties is a jurisdictional fact. The court has to be satisfied about the existence of mutual consent between the parties on some tangible materials which demonstrably disclose such consent. The court while passing its decree under Section 13-B should be slow and circumspect before it can infer the existence of such jurisdictional fact. The court has to be satisfied about the existence of mutual consent between the parties on some tangible materials which demonstrably disclose such consent.
If the second motion is not made within the period of 18 months, then the Court is not bound to pass a decree of divorce by mutual consent. Besides, it is clear that one of the parties may withdraw their consent at any time before the passing of the decree. The most important requirement for a grant of a divorce by mutual consent is free consent of both the parties. Unless there is a complete agreement between husband and wife for the dissolution of the marriage and unless the Court is completely satisfied, it cannot grant a decree for divorce by mutual consent. There is no concept of deemed consent at any stage in particular when either of the parties have not withdrawn consent within eighteen months.
0 comments:
Post a Comment