mutual consent divorce

Hindu marriages are traditionally regarded as a sacrament and a union of two souls.1 While in the ancient Hindu law, marriage was considered an everlasting and a permanent institution, with the evolution of society, the concept of “divorce” was introduced as a part of Hindu personal law, more specifically under the Hindu Marriage Act, 1955 (HMA).

While the pandemic is well behind us, the repercussions of the same can still be felt on marriages. In fact, publicly available sources indicate that with the pandemic, the ensuing lockdown, and the advent of the “work from home” culture, there has been a steep rise in the number of cases related to divorce and child custody. For instance, the city of Mumbai itself saw a nearly threefold increase in cases pertaining to divorce and other allied issues.2

Divorces can be messy and acrimonious, and the only silver lining in such cases can be if the parties cordially reach a common ground. Therefore, divorce by mutual consent is regarded as one of the most amicable ways to settle marital disputes. The courts also assist in helping the parties reach a common consensus, to the extent permissible, and in some cases, even waive off the procedural requirements under the law. In fact, a Constitution Bench of the Supreme Court (SC) of India in May 2023) reaffirmed that it has the power to dissolve a marriage on the ground of irretrievable breakdown (which is, per se, not a ground for divorce under the HMA) under Article 142(1) of the Indian Constitution and that it can dissolve a marriage by mutual consent without following the procedural requirement as set out in the HMA.3

This article discusses the law and jurisprudence in relation to obtaining divorce by mutual consent and whether such consent, once given, can be withdrawn by either party.

Divorce by mutual consent under Hindu law

What is divorce by mutual consent?

If the parties i.e. the husband and wife have been living separately for one year or more, they may agree to mutually dissolve their marriage and approach the court with a divorce petition on the ground that they have not been able to live together and would like to obtain a divorce by mutual consent.4

Procedure and timelines

The HMA provides for a statutory cooling-off/waiting period, of at least 6 months, from the date of presentation of the divorce petition, to enable the parties to explore the possibility of settlement and cohabitation. If the petition is not withdrawn post 6 months (and no later than 18 months) from the date of presentation of the petition, the court, after hearing the parties and making necessary inquiry(ies), may pass a decree of divorce declaring the marriage to be dissolved.

Akin to the HMA, the Special Marriage Act, 1954 (SMA) also provides that mutual consent divorce can be sought if the parties: (i) have been living separately for a period of one year or more; (ii) have not been able to live together; and (iii) have mutually agreed that the marriage should be dissolved. A cooling-off period of 6 months has been provided under the SMA also.

The 6-month cooling-off period — Mandatory or merely directory?

The cooling-off period is mandatory

The cooling-off period is categorically included in HMA and the intention of the legislature is to provide the couple a minimum period of 6 months to reconsider their decision and if possible, to reconcile their differences.5

Typically, courts have held that a mandatory provision of the law (in this case, the HMA) if construed as being directory in nature, may result in defeating the object of the provision.6 In fact, there are a multitude of judicial pronouncements that subscribe to the view that Section 13-B of the HMA is mandatory in nature7 and that courts cannot overlook the substantive provisions of the statute and pass orders concerning an issue which can be settled only through a mechanism prescribed in a statute.8

Can the cooling-off period be waived?

On the flip side, courts have also held that the object of Section 13-B is to enable the parties to dissolve a marriage by consent if the marriage has irretrievably broken down, and to enable them to rehabilitate without undue hardship. This is owing to the fact that while the cooling-off period is to safeguard against a hurried decision, it could not have been the intention of the legislature to perpetuate a purposeless marriage or to prolong the agony of the parties when there was no chance of reconciliation.9

The SC has noted that the 6-month period is not mandatory, and it will be open to the court to exercise its discretion and waive the cooling-off period, where there is no possibility of parties resuming cohabitation and there are chances of alternative rehabilitation.10 Even though every effort must be made to save a marriage, if there are no chances of reunion and there are chances of fresh rehabilitation, the court should not be powerless in enabling the parties to have a better option and future. Various High Courts have followed the suit and waived the waiting period (on a case-by-case basis) and held that the 6-month period is only discretionary in nature.11

In effect, the courts may waive the cooling-off period based on the extant facts and circumstances. Such cases include instances where: (i) the marriage has irretrievably broken down; (ii) parties have been fighting/litigating for a long time and there is no chance of reconciliation;12 (iii) the parties have already settled their disputes by way of mediation;13 or (iv) not waiving off the waiting period would frustrate future prospects of the parties.14

Way forward

Considering the above, the jurisprudence on whether the cooling-off period is mandatory or directory, is still evolving. The tussle for the judiciary is whether the legislature intended, under exceptional circumstances, for the courts to divert from the “literal interpretation” of the law and follow the “spirit” of the law instead. In a nutshell, courts typically take a view that considerable sanctity and seriousness must be given to this legislative directive and it is only in exceptional cases that the cooling-off period should be waived, on the basis of facts and underlying circumstances of each case.15

Can consent, once given, be withdrawn unilaterally?

Mutual consent should be prevalent at all times

It is well established that mere filing of the petition for obtaining divorce by mutual consent does not authorise the court to make a decree for divorce.16 Mutual consent of both parties is required at every stage for an application under Section 13-B of the HMA to succeed, which includes: (i) when the parties move to the court at the first instance with the divorce petition; (ii) when the parties approach the court after the waiting period; (iii) when the court makes inquiry under Section 13-B(2) of the HMA; and (iv) at the time when the decree of divorce is granted. Therefore, it is only on the continued mutual consent of the parties that a decree for mutual consent divorce can be passed by the court.17

Consent can be unilaterally withdrawn before divorce is granted

The HMA specifically recognises the right of the parties to withdraw the consent given to the divorce petition. This right is unqualified and for any reason whatsoever, if the parties or one of them, choose to withdraw their consent, such withdrawal of consent would be in accordance with the statutory provision i.e. Section 13-B(2) of the HMA.18

Laying emphasis on the importance of “consent”, the Supreme Court held that any party to a divorce petition may withdraw his/her consent to the said petition unilaterally. The court observed that the statutory cooling-off period is intended to give time and opportunity to the parties to reflect on their move and seek advice from relatives and friends. In this transitional period, one of the parties may have second thoughts and change his/her mind and choose not to proceed with the petition. If any party says inter alia that, “I have withdrawn my consent” or “I am not a willing party to the divorce”, the court cannot pass a decree of divorce by mutual consent.19 The above view was reinforced by a subsequent ruling of the Supreme Court20 wherein the Court dismissed the husband’s petition for divorce by mutual consent because the wife withdrew her consent before the second motion.

Therefore, both parties have an unfettered right to unilaterally withdraw their consent and reconsider the decision to apply for divorce. This is notwithstanding any undertaking given in any legal proceeding or recorded in any settlement/joint statement, in or outside the court, resulting in a consent order/decree.21

Withdrawal of consent should be genuine and legitimate

While parties have the unequivocal right to withdraw their consent, it must be noted that that there have been instances where courts have ruled that the withdrawal of consent is not genuine and/or proper and therefore, such withdrawal should not be given effect to.

Withdrawal of consent should be genuine and either party should not have any ulterior motive(s) — such as taking undue advantage of the other party;22 to extort (more) money and/or obtain additional property(ies)23, etc. For instance, in a case before the SC24, the wife had specifically withdrawn her consent for divorce, after receiving valuable property rights in consideration of the divorce. Additionally, she refused to cohabit with her husband despite her explicit refusal to proceed with the divorce. The court not only granted divorce but also upheld the settlement agreement despite the withdrawal of consent. Therefore, while withdrawal of consent is an unfettered right, care must be taken to ensure that the basis for withdrawal is legitimate, reasonable, and genuine. Additionally, it must be noted that consent cannot be withdrawn once the divorce has been decreed.25

Concluding remarks

Under Hindu law, marriage is considered a sacred indissoluble bond and the concept of divorce is relatively new and ever evolving. In such matters, courts have to tread carefully and uphold not just the sanctity of marriage but also give deference to the varied interests of the parties involved. Therefore, there is some divergence in the judicial opinion in cases pertaining to mutual consent divorce. While courts generally uphold the letter of the law, in some cases a liberal and purposive interpretation has been given to legal provisions so as to ensure that justice is carried out between the stakeholders involved.

In our view, law should be tempered with equity and each case must be decided on the basis of its peculiar facts and circumstances. The cooling-off period is statutorily prescribed and is even necessary in cases where there may be an opportunity to save the marriage. However, enforcing the same in cases where the marriage is broken beyond repair, may lead to more complexities and drag the process of divorce needlessly. As regards withdrawal of consent, it must be noted that the concept of “mutual consent” divorce works on the primacy of consent, of both parties. Therefore, while parties have the right to withdraw consent, such consent should not be withdrawn unnecessarily, and care must be taken to ensure that the withdrawal of consent does not affect the other party prejudicially.

†Partner, Khaitan & Co.

††Principal Associate, Khaitan & Co.

1. Koppisetti Subbharao v. State of A.P., (2009) 12 SCC 331.

2. Kanu Sarda, Lockdown Impact: Divorce, Child Custody Cases Spike Across Country, Mumbai Tops Chart, The New Indian Express; Rica Bhattacharyya & Maulik Vyas, Divorces Among Professionals Zoom Amid Pandemic Gloom, The Economic Times.

3. Shilpa Sailesh v. Varun Sreenivasan, 2023 SCC OnLine SC 544.

4. Hindu Marriage Act, 1955, S. 13-B.

5. Subhasree Datta v. Nil, 2008 SCC OnLine Cal 224.

6. Family Court v. Nil, 2008 SCC OnLine Bom 759.

7. Mohinder Pal Kaur v. Gurmit Singh, 2001 SCC OnLine P&H 633; Nitin Ramnaik Lal Jhavtri v. Padmini Nitin Jhavsri, 1984 SCC OnLine Bom 535; Hitesh Narendra Doshi v. Jesal Hitesh Doshi, 2000 SCC OnLine AP 169.

8. Manish Goel v. Rohini Goel, (2010) 4 SCC 393; see also Poonam v. Sumit Tanwar, (2010) 4 SCC 460.

9. J.S.V. v. V.P.G., 2019 SCC OnLine Del 8391.

10. Amardeep Singh v. Harveen Kaur, (2017) 8 SCC 746; Shilpa Sailesh v. Varun Sreenivasan, 2023 SCC OnLine SC 544.

11. K. Omprakash v. K. Nalini, 1985 SCC OnLine AP 98; Roopa Reddy v. Prabhakar Reddy, 1993 SCC OnLine Kar 111; Dhanjit Vadra v. Beena Vadra, 1990 SCC OnLine Del 18; Dineshkumar Shukla v. Neeta, 2005 SCC OnLine MP 3.

12. Santosh Kumari v. Virendra Kumar, 1986 SCC OnLine Raj 7; Dhiran Harilal Garasia v. N. Mansu, 1987 SCC OnLine Guj 68.

13. R. Jegannathan, In re, 2014 SCC OnLine Mad 8814.

14. Nikhil Kumar v. Rupali Kumar, (2016) 13 SCC 383.

15. Anil Kumar Jain v. Maya Jain, (2009) 10 SCC 415; Poonam v. Sumit Tanwar, (2010) 4 SCC 460.

16. Yash Mehra v. Arundhati Mehra, 2009 SCC OnLine Del 152.

17. Smruti Pahariya v. Sanjay Pahariya, (2009) 13 SCC 338.

18. Rajesh R. Nair v. Meera Babu, 2013 SCC OnLine Ker 24486.

19. Sureshta Devi v. Om Prakash, (1991) 2 SCC 25.

20. Hitesh Bhatnagar v. Deepa Bhatnagar, (2011) 5 SCC 234.

21. Rajat Gupta v. Rupali Gupta, 2018 SCC OnLine Del 9005.

22. Shikha Bhatia v. Gaurav Bhatia, 2010 SCC OnLine Del 1962.

23. Anil Khatwani v. Nistha Khatwani, 2012 SCC OnLine Raj 1449.

24. Anil Kumar Jain v. Maya Jain, (2009) 10 SCC 415.

25. Pralay Kumar Bose v. Shyama Bose, 1997 SCC OnLine Cal 424.

Must Watch

maintenance to second wife

bail in false pretext of marriage

right to procreate of convict

Criminology, Penology and Victimology book release

Join the discussion

Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.