As I have explained some facts and ground of divorce in my earlier Post of Divorce, I would like to share one of the most important provision of Divorce. That is Divorce by Mutual Consent under Section 13B of the Hindu Marriage Act, 1955.
When Husband and wife wants to dissolve their marriage legally in peaceful manner, they can file petition under Section 13B of the Hindu Marriage Act, 1955. This Act allows both the parties to file divorce petition together by mutual consent. This provision makes the legal procedure of divorce quite simple and smooth than any other divorce procedure. Husband and wife can decide custody of their children by mutual agreement.
The procedure of divorce takes the period of 18 months before the decree of divorce. 1 year for Judicial separation and 6 months of waiting period also called as cooling period. Court can pass the decree of divorce after cooling period if the parties are sure about divorce and there are no issues about child custody, alimony, maintenance or property.
Section 13B of the Hindu Marriage Act, 1955 provides that, (1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976), on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.
(2) On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.
Anil Kumar Jain vs Maya Jain, CIVIL APPEAL NO.5952 OF 2009
The appeal was allowed by the Supreme Court and the petition for grant of mutual divorce under Section 13B of the Hindu Marriage Act, 1955, is accepted. The stand of the respondent wife that she wants to live separately from her husband but is not agreeable to a mutual divorce is not acceptable, since living separately is one of the grounds for grant of a mutual divorce and admittedly the parties are living separately for more than seven years. The Court has passed the decree of divorce on the basis of the joint petition filed by the parties before the Second Additional District Judge, Chhindwara, under Section 13B of the Hindu Marriage Act, 1955, in respect of the marriage solemnized between the parties, according to Hindu rites and customs and the said marriage stand dissolved from the date of this judgment.
Girdhari Maheshwari & Anr vs Nil, DBCMA NO.518/2008
The facts in brief as pleaded by both the appellants are that both the appellants fell in love with each other and without the consent of their parent entered into wedlock on 26.8.2006 by following the rites of Arya Samaj. They could not live together for a single day (or night) as immediately after their marriage, the fact of marriage of the appellants came in knowledge of their parents and they did not accept this marriage. Because of above fact situation only, the appellants stated that the "appellants do not want to live together nor they want to continue this marriage relation because they contacted the marriage because of their lack of understanding". They further pleaded that not only they did not live together for a single day (or night) after marriage, but they did not meet with each other for a single moment after the marriage. With these averments, the appellants, husband and wife filed present petition before the Family Court under Section 13B of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act of 1955) for obtaining mutual consent divorce decree. They pleaded that now both the parties- the appellants, after obtaining the divorce decree by mutual consent, shall live separate from each other and both the appellants want to marry with other persons, the person who has been chosen or suggested by their parents or family members, therefore, both the appellants submitted that for this, their family members also agreed (or appellants agreed to wishes of their parents). With these pleadings, the appellants prayed that therefore, they are submitting this mutual consent divorce petition under Section 13B of the Act of 1955 and appellants prayed that their matrimonial relation may be dissolved from today itself by dispensation with the requirement of six months waiting period as provided under Section 13B of the Act of 1955, which restricts the court from passing the decree for divorce before period of six months from the date of presentation of petition under Section 13B of the Act of 1955.
In this case the Court held that, the appellants failed to show any reason for waiving with the period of six months before passing the decree for divorce even then it is held that the requirement of waiting period of six months as required by sub- section (2) of Section 13B of the Hindu Marriage Act, 1955 is not mandatory and is directory even then the appellants are not entitled to any relief. Consequently, the appeal of the appellants was dismissed.
There are different laws of divorce for different religion which are governed by following laws -
1. Hindus which include Sikh, Jain, Buddhist - Hindu Marriage Act,1955.
2. Christians - Indian Divorce Act-1869 & The Indian Christian Marriage Act,1872.
3. Muslims - Personnel laws of Divorce and Dissolution of Marriage Act,1939 & The Muslim Women (Protection of Rights on Divorce) Act,1986.
4. Parsi - The Parsi Marriage & Divorce Act-1936.
5. Other marriages or Inter-caste marriages - Special Marriage Act,1954.