Since 1976, the Hindu Marriage Act has included mutual consent as a reason for divorce. The Special Marriage Act of 1954 was the sole Indian regulation that allowed for divorce by mutual consent prior to 1976. 1 If the marriage fails and the parties agree, a person married under the provisions of this Act may have their marriage dissolved by mutual consent. The Marriage Laws (Amendment) Act of 1976 amended the Hindu Marriage Act by adding section 13B, which established mutual consent as a reason for divorce.
In layman’s terms, section 13B outlines the requirements that must be met before a petition for mutual consent divorce can be filed, including that the parties have lived separately for at least one year. The reasoning behind this condition is that if they have been living apart for such a long time, there is a presumption that they do not want to continue the relationship. Second, they’ve been unable to cohabitate. Third, they have jointly consented to end their marriage without the use of force, deception, or undue influence.
In the case of Sureshta Devi v Om Prakash , the Supreme Court of India declared that “the word living apart connotes not living as husband and wife.” It makes no reference to where you live. Despite the fact that the parties may live under the same roof due to circumstances, they may not be living as husband and wife. What appears to be crucial is that they have no willingness to fulfil marital commitments, and as a result, they have been living apart for a year prior to the filing of the petition.”
In a number of decisions, the Supreme Court has declared that the phrase “have been living apart” does not always entail physical separation or living apart. What matters is that the spouses are not performing their marital obligations and are not living together as husband and wife.
Parties have not been able to live together
In Sureshta Devi v Om Prakash, the Supreme Court noted that the phrase “had not been able to live together” appears to imply a marriage that has broken down to the point that there is no hope of reconciliation. It is not necessary for the parties to prove that they have been unable to live together. They have not been able to live together, as evidenced by the fact that they have presented a petition by mutual consent. However, it is critical to ascertain whether both parties’ permission was freely provided and not obtained through coercion, fraud, or undue influence.
If, on the other hand, the petition is not withdrawn, the court may proceed with it on the motion of both parties submitted no earlier than six months after the date of the petition and no later than 18 months after that date. It must satisfy itself that the averments submitted in the petition are true after hearing both parties and conducting the necessary enquiries before delivering a divorce order. Only after such satisfaction can a mutual consent divorce decision be issued.
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