Gunjana Mudgal
Family Matters

An Appeal Against the Mutual Consent Divorce

Contents hide

1 Introduction

2 History of Divorce

3 Mutual Consent theory

4 Purpose of Divorce

6 Grounds for Divorce under the Hindu Marriage Act, 1955

7 Divorce by Mutual Consent

8 New petition required

9 Degree by Mutual Consent

10 The mandatory requirements envisaged under section 13B of the Hindu Marriage Act are that,

11 Appeal against Mutual Consent order

12 Conclusion

13 Bibliography

14 Related

Introduction

An Appeal against the Mutual consent Divorce

The Parliament of India enacted Hindu Marriage Act, 1955 on 18 May 1955. There are lots of provisions under this Act relating, valid marriage, Void marriage, Divorce, Grounds of Divorce, etc. The procedure for filling Divorce case. Etc.

As the marriage is a beautiful thing which happens, through this two couples connect to each other and move forward for their beautiful life.

History of Divorce

Earlier divorce was unknown to general Hindu law as marriage was regard as an indissoluble union of the Husband and wife. According to Kautilya’s Arthashastra, marriage might be dissolved by Mutual Consent in the case of the unapproved form of marriage.

But manu does not believe in discontinuance of marriage. He declares “let Mutual fidelity continue till death; this in brief may be understood to be the highest Dharma of the Husband and wife.

Mutual Consent theory

The reasoning behind this theory is that since two people marry each other through their free will, at the same time, they ought to likewise be permitted to move out willingly. In case, it highly criticize that this methodology will advance immorality as it will promote rushed separations and parties would break down their marriage regardless of whether there was a slight contradiction of personality.

Purpose of Divorce

Divorce word is not exactly define in Act; bit the Ground of Divorce is mention in section 13. If the marriaged couple not able to live their life freely with happiness, or some stress in their life than both of one of them decide to make this relationship end. Divorce is nothing but only separations of both marriaged couples.

Provision Related to Divorce under the Hindu Marriage Act, 1955

There are following section such as:-

1) Section 10:- Judiciary separation

2) Section 13:- Ground of Divorce.

3) Section 13A:- Alternative relief in Divorce Proceeding.

4) Section 13 B:- Divorce by Mutual consent.

5) Section 14:- No petition for Divorce to be present within one year of marriage.

6) Section 15:- Divorced persons when may marry again.

Grounds for Divorce under the Hindu Marriage Act, 1955

The section 13 of the Act deals with the grounds of divorce. Thus these grounds are lawfully valid grounds for Divorce and if such circumstances arise, then, unfortunately, divorce is bound to take place:-

1) Adultery. Section 13(1)(i)

2) Cruelty. Section 13(1)(ii).

3) Desertion. Section 10(ib).

4) Conversation. Section 13 (1)(ii).

5) Insanity. Section 13 (1)(iii).

6) Leprosy. Section 13 (1)(iv).

7) Venereal Disease. Section 13 (1)(v).

8) Renunciation. Section 13 (1)(vi).

9) Presumption of Death. Section 13

Divorce by Mutual Consent

Section 13B. Divorce by Mutual consent

(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, 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.

In case P. Sunder Raj vs. P. Sarika Raj, AIR 2015, Punjab, It is well settled that where a power is gives to do certain things in a certain way, that must be done in that way alone or not at all and all other methods of performance are necessarily forbidden.

Waiting period under section 13B (2) can be waive:-

In case Visalakshi vs. Shivaraman Nair and Sreelatha vs. Deepty Kumar, held that in appreciate cases the waiting period prescribe under Section 13B(2) of the Act can be waived.

New petition required

Kaizer Basu vs. Mahua Basu[1], A proceeding under Section 13(1) of the Hindu Marriage Act, 1955 cannot be converted to be made under section 13B of Hindu Marriage Act 1955, A new petition under Section 13 B was required to be filed before the District Court.

Degree by Mutual Consent

In Anil Kumar Jain vs. Maya Jain, the Supreme Court has clearly held, in no uncertain terms, that the doctrine of irretrievable breakdown of marriage is available even to the high court’s which do not have power similar to those exercised by the Supreme Court under Article 142 of Constitution of India.

Swapnil Verma vs. Principal judge, family Court, luknow[2], neither can the high court, nor the civil court can pass orders before the period prescribed under the relevant provisions of the Act, or on grounds not provided for in Section 13 and 13B of the statue.

Mandeep Kaur Bajwa vs. Chetanjeet Singh Randhawa[3],

In view of proviso to section 14(1) of the Act, condonation of the period of the period of one year in the facts and circumstances of the present case appears to be appreciating. The petition under section 13-B of the Act was file on 12/8/2013 when the statements of both the parties at first motion were record. The statements of both the parties at second motion recorded on 17/2/2014. Therefore the parties are grant a decree of Divorce by Mutual Consent under Section 13B of the Act.

The mandatory requirements envisaged under section 13B of the Hindu Marriage Act are that,

1. They have been living separately for a period of one year or more,

2. That they have not been able to live together.

3. That they mutually agreed that the marriage should be dissolved.

Once these three conditions are satisfy then only the court has the jurisdiction to entertain the petition for Divorce by Mutual Consent.

Appeal against Mutual Consent order

Now the main question arises in our mind is that, Appeal against Mutual consent is maintainable or not. ?

For this we need to know the exact word of law. We need to understand the word consent. The section 28 of the Hindu marriage Act said that, ” All decrees made by the court in any proceeding under this Act shall, subject to the provisions of Sub section (3), be appealable as decree of the Court made in the exercise of it’s original civil jurisdiction, and every such Appeal shall lie to the court to which appeals ordinarily lie from the decision of the Court given in the exercise of it’s original civil jurisdiction. Under Section 13 B decree fir Divorce passed therefore a decree of mutual consent divorce should also be appealable.

Anshu Malhotra vs. Mukesh Malhotra, A division bench of judge, Justice Rajiv Sahai and Asha Menon held that appeal against decree for Mutual consent is maintainable.

In this case both the parties make an appeal under section 28 read with section 19 of the Family Court Act 1984 against the judgment of judge. The wife content that the consent for Divorce I’d obtained on the period when she was ill. And also content that before filing petition both not living separately for the statutory mandatory period of one year. After the fully satisfaction of Court it was held that Appeal us maintainable. The same this is happen in Krishna khetparpal vs. Satislal[4] and Charanjit Singh vs. Neelam Ma’am[5].

Supreme Court judgement in Pushpa Devi Bhagat vs. Rajinder Singh[6]Where regarding order 23 rule 3 of CPC, the appex court has held that, “The only remedy available to a party to a consent decree to avoid such consent decree is to approach the court which recorded the compromise and made a decree in terms of it, and establish that there was no compromise. In that event the court which recorded the compromise will itself consider and decide the question as to whether there was a valid compromise or not. This is so because a consent decree is nothing but a contact between parties superimposed with the seal of approval of the Court. The validity of a consent decree depends wholly on the validity of the agreement or compromise on which it is make.

However, sometime a doubt is raise on this issue in view of provision of section 96(3) of the civil procedure code which lays down that” No Appeal shall lie from a decree passed by the court with the consent of parties”.

Future section 23(1)(bb) of the Hindu Marriage Act requires that in any proceeding under this Act, whether defended or not, the court should be satisfied that ” When a divorce is sought on the ground of mutual consent, such consent has not been obtained by force, fraud or under influence”. This is clearly implies that the courts be satisfied that in the case of a divorce being sought on the ground of mutual consent, consent of the parties has not been obtained by force, fraud, undue influence.

Sushama vs. Pramod[7]has held that,

“Legislature has cast obligation upon Court entertaining the proceedings under section 13 B to record a finding that consent for Divorce has not been obtained by force, fraud, undue influence. Thus obligation has been cast upon the Court to verify the same, and to record a satisfaction that the consent give by the parties is free and voluntary. Accordingly the Bombay high court held that appeal against the Mutual Consent decree was legal

ly maintainable.

Similarly another Division Bench of Punjab and Haryana High court in the case of Charanjit Singh Mann vs. Neelam ma’am[8], and a division bench of Jharkhand high court in the case of Hina singg vs. Satya Kumar Singh[9], Jharkhand 34 have also held that Appeal against decree of divorce by Mutual Consent is maintainable.

Conclusion

In last we conclude that, the appeal against the Degree of Mutual Consent is maintainable. The main thing is that in mutual consent decree the consent must be give freely. The word consent is define in our Indian Contact Act, 1872 section 13.