Divorce by way of Mutual Consent -As per Hindu Marriage Act, 1955 , a spouse can seek divorce from the other either on the basis of grounds specified in the Act which is known as contested divorce or by way of mutual consent wherein both the parties have decided to part ways by settling the terms and conditions of the separation. Before we proceed to explain the process of Divorce by way of Mutual Consent, it is important to point out here that wherein both the parties are engrossed in a Divorce battle, and either due to the intervention of the Court, Mediation, Conciliation or any 3rd factor, the parties decide to part ways by Mutual Consent, in that scenario, the Contested Divorce Petition is to be withdrawn on the basis of the settlement and divorce by way of mutual consent has to be applied before the concerned Court.
As far as divorce by way of mutual consent is concerned, the same is governed by Section 13B of Hindu Marriage Act,1955. As per Section 13B of Hindu Marriage Act,1955, the parties can obtain divorce by way of mutual consent wherein all the terms and conditions have already been settled between the parties including the quantum of alimony, maintenance, custody, and visitation of children (if any) and so on and so forth.
The moment the parties decide to obtain divorce by way of mutual consent, and the terms and conditions have been settled between the parties, a joint petition is filed under section 13 B(1), Hindu Marriage Act, 1955(Also known as First Motion Petition of Divorce by way of Mutual Consent) pursuant to which the concerned Court records the statement of both the parties in terms of the settlement arrived at between the parties and further records the compliance of the settlement terms if any at the time of recording of the statement of both the parties. After due satisfaction, the concerned Court allows the Petition under Section 13 B(1), Hindu Marriage Act 1955.
After the disposal of the Petition under Section 13 B(1) of Hindu Marriage Act, 1955, the first part of the divorce by way of mutual consent is completed. As per law, there is a cooling off period of 6 months before the second part i.e. Petition under Section 13 B(2) of Hindu Marriage Act, 1955 is initiated and filed.This cooling off period of 6 months is statutory gap before filing the petition under Section 13 B(2) of Hindu Marriage Act, 1955(also known as second motion petition of divorce by way of mutual consent).As per law it is not permissible to Condone this statutory gap/ cooling off period between two motions of divorce by way of mutual consent under section 13 B of Hindu Marriage Act, 1955.
However, the parties who have fought for a considerable period of time and there are no chances of reconciliation left amongst them, the waiver of statutory gap in such cases acts as a miracle as such parties, on settlement, wishes to get out of the litigation within a spur of moment.
The Honourable Supreme Court after gauging such hassles and problems faced by such spouses who have already fought for a considerable period of time, the sour battle, devised out certain directions in Amardeep Singh v. Harveen Kaur. The Hon`ble Supreme Court held that this mandate for waiting period was found to be causing hardships in certain cases. The Court further held that the six months waiting period as prescribed under Section 13B(2) of the HMA is not mandatory and that the same can be waived by the Family Court in exceptional circumstances.
The bench in further held that the Court should consider the following questions :
(i) How long parties have been married?
(ii) How long litigation is pending?
(iii) How long they have been staying apart?
(iv) Are there any other proceedings between the parties?
(v) Have the parties attended mediation/ conciliation?
(vi) Have the parties arrived at genuine settlement which takes care of alimony, custody of child or any other pending issues between the parties?
The bench also noted that in Amit Kumar v. Suman Beniwal (2021), a two-judge bench held 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, if any, maintenance and custody of children, etc.