Section 13-B of Hindu Marriage Act – Object of

The object of the provision is to enable the parties to dissolve a marriage by consent if the marriage has irretrievably broken down and to enable them to rehabilitate them as per available options. The amendment was inspired by the thought that forcible perpetuation of status of matrimony between unwilling partners did not serve any purpose. The object of the cooling off period is a safeguard against a hasty decision if there was otherwise possibility of differences being reconciled. The object is not to perpetuate a purposeless marriage or to prolong the agony of the parties when there is no chance of reconciliation. Though every effort has to 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 opinion. Prabhat Singh v. Smt. Sweta Yadav, 2020 (3) AWC 2556.

Khula – Mode of Dissolution of Marriage

“khula” is a mode of dissolution of marriage when the wife does not want to continue with the marital tie. To settle the matter privately, the wife need only to consult a Mufti (juris consult) of her school. The Mufti gives his fatwa or advisory decision based on the Shariat of his school. Further, if the wife does not want to continue with marital tie and takes mode of “khula” for dissolution of marriage, she is required to propose her husband for dissolution of marriage. This may or may not accompany her offer to give something in return. The wife may offer to give up her claim to Mahr (dower). The “khula” is a mode of divorce which proceeds from the wife, the husband cannot refuse subject only to reasonable negotiation with regard to what the wife has offered to give him in return. The Mufti gives his fatwa or advisory decision based on the Shariat of his school. However, if the matter is carried to the point of litigation and cannot be settled privately then the Qazi (Judge) is required to deliver a qaza (judgment) based upon the Shariat. Juveria Abdul Majid Patni v. Atif Iqbal Mansoori, (2014) 10 SCC 736

Divorce Proceedings – Abuse of Process of Court

The intention of the legislation is at least to consider the rival contentions of the parties to matrimony and when there is sufficient material on record to show that the ingredients under Section 13 of the Hindu Marriage Act are made out, and under the given circumstances there is cruelty, the Court should either make effort to settle the dispute or relationship has to be brought to a complete end. One party to the proceeding cannot be permitted to take advantage and cannot be permitted to abuse the process of law court and on the other hand simultaneously resorting to all the process of misbehaving with the husband and harassing him. Such type of attitude by the respondent (wife) cannot be permitted coupled with the fact that the order happens to be an ex parte order because the wife has deliberately avoided participating in the proceedings, despite the notice being served by the publication which would deemed to be served under law. Anirudh Guru Pratap Singh v. Harmit Kaur, 2017 (125) ALR 358.

Divorce by Mutual Consent – Maintainability of Appeal

The first part of Section 13-B of the Hindu Marriage Act contemplates for presentation of petition for dissolution of marriage by mutual consent by both the parties to the marriage, if they are living separately for a period of one year or more and have agreed to the dissolution of the marriage. The second part of Section 13-B of the Hindu Marriage Act has two sub – parts. The first sub-part provides for moving a motion by both the parties not earlier than six months from the date of presentation of the divorce petition and not later than eighteen months of the said date. In other words, it contemplates initiation of the second motion by both the parties after expiry of six months but before the expiry of eighteen months from the date of presenting petition for divorce.

The second sub-part contemplates that if the petition is not withdrawn in the meantime, the court shall, on being satisfied after hearing the parties and after making inquiries that the averments in the petition are true, pass a decree for divorce.

In the case of Hitesh Bhatnagar v. Deepa Bhatnagar, 2011 (86) ALR 491, the Hon’ble Supreme Court has held that if the second motion is not made within period of eighteen months of the first motion petition, then court is not bound to pass a decree of divorce by mutual consent. The aforesaid time limit is not for withdrawal of the petition or consent, rather consent can be withdrawn at any t ime before a decree of divorce is passed.

In the case of Smt. Sureshta Devi v. Om Prakash, 1991 (17) ALR 263, it has been laid down that on the joint motion of the parties to grant divorce by mutual consent the Court is supposed to make an inquiry, hear and examine both the parties to ascertain that the consent of the parties has not been obtained by force, fraud or undue influence.

Section 23(1)(bb) of the Hindu Marriage Act also casts an obligation upon the courts in the matter of divorce by mutual consent to satisfy itself that the consent has not been obtained by force, fraud or undue influence. Thus , the court is obliged to make requisite inquiry in the matter before proceeding to pass a decree of divorce by mutual consent.

It means that for a decree of divorce by mutual consent joint petition is mandatory and that the second motion has to be made by the parties after six months but before expiry of eighteen months of the first motion petition and that the parties are free to withdraw the petition anytime before the passing of the decree. The decree has to be passed after making due inquiry as to the genuineness and bona fide of the parties to the petition.

Section 28 of the Hindu Marriage Act which permitted filing of appeal against the decrees and orders passed under the Act placed no rider on filing appeal even against a consent decree. It permitted appeal against all decrees made by the court in any proceedings under the Act, except those relating to award of costs. Thus, by necessary implication, even consent or compromise decree, if passed under the Hindu Marriage Act are open to appeal.

In Smt. Krishna Khetrapal v. Satish Lal, AIR 1987 P&H 191, it has been held that against the decree of divorce by mutual consent appeal is maintainable under Section 28 of the Hindu Marriage Act. Smt. Pooja v. Vijay Chaitanya, 2018 (129) ALR 711.