DIVORCE BY MUTUAL CONSENT

BY DIKSHA
IIIrd SEMESTER
CHANAKYA NATIONAL LAW UNIVERSITY
INTRODUCTION
Hindu society regards marriage as a sacrament into which, doubtless, the element of contract
enters as a constituent element. But contract is not all. It is the sacramental character that is
more pronounced and prominent than the contractual. The concept in western countries is
different which considers marriage as a contract and like any other contract it should be
terminated at the will of the contracting parties. That appears to be the characteristic tendency
discernible in most of the Western societies. This fundamental difference in the notions of
matrimony is responsible for the comparatively large number of divorces in Western societies
and their absence from Hindu society.
In modern India the divorce starts with the Indian divorce act, 1869. It governed only the
Christians by the limit that was given to the act by section 2 of the act3.Dissolution of marriage
under this act is covered in the section 104. Under this act a male can file a divorce petition only
on the ground that the wife has been guilty of adultery. A female could file a divorce petition if
the husband had changed his religion or he was guilty of adultery, bigamy, sodomy or rape.
In the olden days divorce was abhorred and rare. Prior to the enactment of the Hindu Marriage
Act, Hindu Law did not allow divorce except in certain communities, which formed the lower
stratas of society, where it was permitted by custom. Due to social change, economic prosperity
and education, Indian society is influenced by western culture and life style. Divorce is
considered as a policy of insurance, providing an opportunity of relief and release to a married
couple who, through no fault of their own, without any moral blame, have come into contact
with unforeseen difficulties and calamities which make married life intolerable. Divorce and
suicide have many things in common and one crucial difference. Although both are public
admissions of devastating failure, divorce unlike suicide has to be lived through. In these
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circumstances, the Hindu Marriage Act 1955 was enacted to provide for dissolution of marriage
under Section 13. Even then the courts were reluctant and seldom granted the decree of divorce.

DIVORCE BY MUTUAL CONSENT UNDER HINDU LAW

THE MUTUAL CONSENT THEORY OF DIVORCE
Hindu Marriage Act, 1955
This act has undergone substantial changes since its introduction in 1955. Though initially
adultery, cruelty and desertion were the ground for judicial separation, now they are grounds
for divorce. Initially only the fault or the guilt theory of divorce was recognized slow and
steadily other grounds of divorce were recognized.
The ground for divorce on the basis of mutual consent was recognized in the year 1976. Section
13 B1 was introduced in this act. As against the guilt theory there has been advocated the theory
of free divorce or the consent theory of divorce. According to this the parties to marriage are free
to dissolve a marriage as they are free to enter it. The argument is that the two parties that have
entered into the marriage with free consent, may later on realize that they made a mistake, for
one reason or the other, and are finding it difficult to live together. In this case the parties did not
have any ground for divorce as they have not done any wrong (adultery, cruelty, bigamy etc) or
they are faultless. So what should they do? The very basis of marriage is mutual fidelity, and if
for any reason the parties feel that the mutual fidelity
cannot continue, they should have the freedom to dissolve the marriage and only through
dissolution the fidelity can be preserved.
The provision for divorce by mutual consent under the Hindu Marriage Act, Parsi Marriage Act
and Divorce Act, the Special Marriage Act(sec. 28) and Divorce Act is identical. Section 13-B,
Hindu Marriage Act, runs as under :
i.

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

1 When husband may petition for dissolution- Any husband may present a petition to the District Court or to
the High Court, praying that his marriage may be dissolved on the ground that his wife has, since the
solemnization thereof, been guilty of adultery. When wife may petition for dissolution - When wife may petition for
dissolution.-Any wife may present a petition to the District Court or to the High Court, praying that her marriage
may be dissolved on the ground that, since the solemnization thereof, her husband has exchanged his
profession of Christianity for the profession of some other religion, and gone through a form of marriage
with another woman; or has been guilty of incestuous adultery, or of bigamy with adultery

together, whether such marriage was solemnised 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.
On the motion of both the parties made not earlier than six months after the date of the

ii.

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.
Requirements of divorce by mutual consent
The requirements which have to be met to seek divorce under Hindu Marriage Act are as
follows:

The parties have been living separately for a period of at least one year

They have not been able to live together, and

They have mutually agreed that marriage should be resolved.

Living separately
The Supreme Court of India in the case of Sureshta Devi v Om Prakash2 has ruled out that the
expression living separately connotes not living like husband and wife. It has no reference to the
place of living. The parties may live under same roof by way of circumstances, and yet they may
not be living as husband and wife. What seems to be important is that they have no desire to
perform marital obligations and with that they have been living separately for a period of one
year immediately preceding the presentation of the petition. It has been ruled out by Supreme
Court in various cases that the expression have been living separately does not necessarily
means physical separation or living separately and apart what is material is that no marital
2 (1992) AIR SC 1904
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obligations are performed between the spouses and they are not living together as husband and
wife.
Parties have not been able to live together
After establishing the first requirement that the parties were living separately for one year or
more, the second point that has to be established is that the parties have not been able to live
together.
In Sureshta Devi v Om Prakash3, the Supreme Court observed that expression have not been
able to live together seems to indicate the concept of broken down marriage so much so that
there is no possibility of any reconciliation. The parties need not establish the fact that they have
not been able to live together. The very fact that they have presented a petition by mutual
consent is indicative of this fact that they have not been able to live together. 4 However, it is very
imperative to determine whether consent given by both the parties is free and not obtained by
any kind of force, fraud or undue influence.
After satisfying the above two requirements and filing a joint petition for divorce by mutual
consent, the parties must wait for at least six months, usually termed as the cooling period.
After the end of this period, if the initial petition is not withdrawn by either of the parties or
jointly, both the parties may move court by way of joint motion within the stipulated period of 18
months from the initial date of the filing of the joint petition. This period is given to parties to rethink their decision. The following aspects of this provision have been subject to judicial
interpretation:5

Unilateral withdrawal of consent by one party3 Id.

4 Paras Diwan, Law of Marriage & Divorce (5th, Universal Law Publishing Co., New Delhi 2008) 529.
5Kusum, Family Law Lectures (3rd, Lexis Nexi Butterworths wadhwa, Nagpur 2002) 162.
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There have been contrasting judgments on this issue. The controversy is that since under this
section both parties have to file a joint petition for divorce how can one party unilaterally
withdraw from it. Also, one of the purposes of giving a time period of six months is to allow
parties to re-think their decision and if one of the party decides to withdraw from it, why should
it not be allowed to do so.
In Jayashree Ramesh Londhe v Ramesh Bhikaji,6 the court held that once a joint petition by
mutual consent was filed, no party could withdraw from it without the consent of both the
parties. Likewise, in Nachhattar Singh v Harcharan Kaur,7 it was held that- If both the parties
had voluntarily consented to file the petition for dissolving the marriage by mutual consent and
all other conditions mentioned in sub-section (1) of section 13-B of the Act are fulfilled, it will
not be open to a party to withdraw the consent.
On the other hand, in Sureshta devi v Om Prakash 8, the Court has held that petition of divorce
can be withdrawn unilaterally. It was held in this case that if one of the parties withdraws its
consent the Court cannot pass a decree of divorce by mutual consent. The Court held that if the
decree is solely based on the initial petition it negates the whole idea of mutuality and consent
for divorce. Mutua consent to divorce is sine qua non for passing a decree for divorce under
Section 13-B. Mutual consent should continue till the divorce decree is passed.9
However, in a recent judgement of Supreme Court in the case of Anil Kumar Jain v Maya Jain 10
it was held that- Under the existing laws, the consent given by the parties at the time of filing of
the joint petition for divorce by mutual consent has to subsist till the second stage when the
petition comes up for orders and a decree for divorce is finally passed and it is only the Supreme
6 AIR 1984 Bom 302
7 AIR 1986 P&H
8 AIR 1992 SC
9 Id
10 AIR 2009 SC
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Court, which, in exercise of its extraordinary powers under Article 142 of the Constitution, can
pass orders to do complete justice to the parties. The Supreme Court however clearly expressed
that only use the power under Article 142 only in special circumstances, in normal circumstances
the provisions of the statute have to be given effect to.
The law as explained in the Sushreta Devis case still holds good that is the parties can withdraw
consent unilaterally. But Supreme Court using its power as provided under Article 142 of the
Constitution can grant divorce even if the wife or husband withdraws its consent during the
proceedings in the lower court and prior to the passing of the decree.

Whether the waiting period of six months is mandatory or directory

There have been conflicting judgements on this regard that whether the courts should
mandatorily wait for a period of six months as given in the sub section(2) of Section 13B. In the
Grandhi Venkata Chitti Abbai11 case, the court observed that- If Section 13-B (2) is read as
mandatory, the very purpose of liberalizing the policy of decree of divorce by mutual consent
will be frustrated more so when the parties started living separately for a considerable time. Thus
s 13-B (2) though is mandatory in form is directory in substance. Likewise, in the case of Dinesh
Kumar Shukla v Neeta,12 it was held that the waiting period is directory in nature and it can be
brought down from 6 months( provided the mandatory requirements of s 13-B (1) are fulfilled)
when all efforts at reconciliation failed.
But, in the case of Hitesh Narendra Doshi v Jesal Hitesh Joshi, 13 it was held that the provision
has a definite purpose and object, i.e. giving time to the parties for introspection and
reconciliation. That purpose and object stares at us so clearly by the language expressed in s 13B (2) of the Act robbing away the right of the court from considering the petition earlier than six
months.

11 AIR 1999 AP 91
12 AIR 2005 MP 106
13AIR 2000 AP 364
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In the case of Ashok Hurra v Rupa Ashok, it was held that in exercise of its extraordinary
powers under Article 142 of the Constitution, the Supreme Court can grant relief to the parties
without even waiting for the statutory period of six months stipulated in s. 13-B of the Act. This
doctrine of irretrievable break-down of marriage is not available even to the High Courts which
do not have powers similar to those exercised by the Supreme Court under Article 142 of the
Constitution.
Therefore, the courts have been inclined more towards waiving off this period if the
circumstance of the case demands so and where there is no chance of reconciliation between the
parties. Also, Supreme Court by way of its extraordinary powers as provided under Article 142
of the Indian Constitution can grant divorce without waiting for 6 months if it is satisfied that the
marriage is irretrievably broken down. However, this power is restricted only to Supreme Court.
There is still uncertainty whether High Courts and Family Courts have to mandatorily wait for a
period of 6 months. But as it is evident from many cases where there is no possibility of
reconciliation between the parties and the marriage has been broken down irretrievably, the
courts should follow the spirit of law more than the formal requirements of the section.

DIVORCE BY MUTUAL CONSENT UNDER MUSLIM LAW

Previous to Islamic legislation, the wives had no right to claim dissolution of the marriage on any
ground whatsoever. In special cases only the power of divorce was expressly reserved in their
favour by contract. As a general rule neither the ancient Hebrews nor the pre-Islamic Arabs
recognized the right of divorce for women. 14 Islamic law never conferred the same power to
pronounce talak on the woman as it does on the man. However it does recognize a Muslim
womans right to seek divorce with the consent of the husband. 15 The Koran allowed them this
privilege which had been denied to them by the ancient institutions of their country. Says and are
apprehensive that they cannot observe the bounds prescribed by the divine laws (that is they
cannot perform the duties imposed on them by the conjugal relationship), the woman can release

14 Syeed Amir Ali, Muhammadan Law, (Kitab Bhavan, New Delhi, 1986), P. 466.
15 Paras Diwan, Family Law, (4th Edition,Allahbad Law Agency, Faridabad, 1998), P. 177
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herself from the tie by giving up some property in consideration for which the husband has to
give her a khula and when they have done this a talak-ul-bain would take place.16
A hadith runsA women who asks to be divorced from he husbnd without cause, the fragrance of the
garden is to be forbidden to her.
There are two forms of divorce by mutual consent, in both the woman has to part with her
property. One is the khula divorce and the other one is the mubarat form of divorce.17
Mubarat:
The literal meaning of the word Mubarat is obtaining release from each other. It is said to take
place when the husband and wife, with mutual consent and desire, obtain release and freedom
from their married state. The offer for separation in mubarat may proceed either from the wife or
from the husband and as soon as it is accepted dissolution is complete. It takes effect as one
irrevocable divorce without the aid of the court. Under Hanafi law, mubarat is equivalent to one
irrevocable pronouncement of talaq, making it necessary for the parties to contract a fresh
marriage with each other if they wish to resume a marital relationship.
According to the holy Quran; the basis of Mubarat is Surah al Baqrah 18, it is given in the
book, that there is danger in mubarat, just as with all forms of divorce, to which the parties
might act hastily, then repent, and again wish to separate. To prevent such capricious action
repeatedly, a limit is prescribed. Two divorces (with attempted reconciliation in between) are
allowed. After that the parties must definitely make up their minds, either to dissolve their union
permanently or to live together in mutual love and forbearance. 19If the husband is the one who
makes the initial offer of a mubarat, his offer may not be retracted. It is up to the wife, then, to
16 Supra, note 7
17 https://arjungupta1993.wordpress.com/2015/03/22/divorce-by-mutual-consent-in-muslim-lawmubarat/
18 The Holy Quran,Text,Translation and Commentary by Abdullah Yousaf Ali,Sh.Mohammad
Ashraf

Publishers & book sellers, Surah Al-Baqrah

19 Ibid.
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either accept or reject this offer. This is primarily because this offer by the husband is deemed
equivalent to an oath of repudiation, which becomes effective immediately when the wife
signifies her acceptance of the offer. On the other hand, if the wife makes the initial offer of a
mubarat, she may retract her offer at any time before acceptance by the husband. Since mubarat
requires consent of both parties to the marriage contract, the agreement to divorce may be
voidable if either or both the parties lacked the necessary intent or have been induced into
acceptance by fraud or duress.
Kula
While in the Khula divorce, the request proceeds from the wife to be released and the husband
agrees for certain consideration, usually the mehar, in mubarat apparently both are happy at the
prospect of being rid of each other. No formal form is insisted on for mubarat by the Sunnis. The
offer may come from either side. When both the parties enter into mubarat all mutual rights and
obligations come to an end.20
At first in the Indian sub continent the form of Khula talaq and mubarat were not recognised as
form of a valid talaq according to law. It was in the case of Mst. Umar Bibi v Muhammad Din 21
that the concept of mubarat was recognised and brought in the fore front.
So, the second khalifa, Umar, shut up a petitioning wife in a filthy room for three days and three
nights in order to determine the extent of revulsion. On being taken out, the Khalifa enquired as
to how she had fared, and she replied, By Allah, these three days have been the only days of
peace of my life since marriage.
The divorce was subsequently given in this case. The judge relied on the spoken words of the
wife.22The judge decided that even where there was mutual dislike or extreme incompatibility of
temperament between husband and wife there can be mubarat, sukoon, and rehmat in the married
life (declared to be objectives of marriage by the Quran) with the procreation of children.

20 Bhartiya V. P. Muslim Law, ed. 5.

21 AIR 1945 Lah. 51
22 http://heinonline.org/HOL/Page?
handle=hein.journals/modlr30&div=32&g_sent=1&collection=journals
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In the case of Mst. Sayeeda Khanam v. Muhammad Sami 23, it was decided that incompatibility
of temperaments, aversion or dislike cannot form a ground for a wife to seek dissolution of her
marriage at the hands of a Qazi or court, but is to be dealt with under the powers possessed by
the husband and the wife under Muslim law, as parties to the marriage contract. This case
defined khula as dissolution of a marriage by agreement between the parties for a consideration
paid or to be paid by the wife to the husband. It was necessarily a case of mubarat.

CASE STUDY
Mst. Umar Bibi v Muhammad Din Khurshid Bibi was married to Muhammad Amin, and her brother was married to his
sister.Since there were no offspring of the wedlock, Muhammad Amin took a second
wife. Within twenty days of the second marriage, their relations became strained. She
demanded a separate house and though he promised it to her, he failed to fulfill his
promise. She complained of maltreatment at his hands. There arose such differences
between them that Muhammad Sharif, her brother, took out warrants under section 100,
Criminal Procedure Code, and she left his house. The respondents father convened two

Panchayats, but efforts at reconciliation between the spouses failed.

Khurshid Bibi then brought a suit for dissolution of marriage with Muhammad Amin, and
he instituted a suit for restitution of conjugal rights. Her suit was dismissed, but her
husbands suit was decreed against her on January 21, 1960. Muhammad Amin visited her

at her parents house to realize costs awarded to him in his suit.

Khurshid Bibi then initiated a second suit against Muhammad Amin on February 22,
1960, alleging that he had orally divorced her on January 29, 1960 and agreed to give her
a deed of divorce on the following day, but had not kept his promise. She prayed for a
declaration that having been divorced by him, she was no longer his wife, and in the
alternative, for a decree for dissolution of her marriage by khula. She was willing to give
up her dower, since it had become impossible for them to live together as husband and
wife. She also alleged that Muhammad Amin had not incurred any expenses in his
marriage with her. In response, Muhammad Amin denied that he had orally divorced her
or that she was entitled to dissolution of marriage by khula. He said their relationship was

23 PLD 1952 (WP) Lah 113 (FB)

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not so unhappy as to make it impossible for them to live together. He also claimed he had
spent Rs. 2,000 on their marriage. He was opposed to divorcing her even if she were to

give up her dower.

The trial court did not believe that Khurshid Bibis husband had orally divorced her. The
trial court then decided that there was no likelihood of the parties being restored to a

harmonious relationship. Since the plaintiff had filed a second suit for dissolution of
marriage, she clearly was determined not to live with him or go to his house. Islam
preferred separation rather than a married state in name only. So the court decreed the
plaintiffs suit, dissolving her marriage in exercise of her right of khula.
In Muhammad Amins appeal, the District Judge held it was not possible to believe that
immediately after the dismissal of her suit, the respondent would divorce her, and that if
he had really wanted a divorce he would have given her a statement in writing. The Judge
also stated that khula should not be granted because the Plaintiff had not come to court
with a straightforward story, and because there was some truth to the fact that it was a

case of zid (obstinacy) on her part because of his second marriage.

In Khushid Bibis second appeal, the Single Judge of the High Court believed that
because her brother was married to his sister, he could not afford to be inconsiderate
towards her. Thus, he felt that if the defendant could not provide a separate residence for
her it was because he lacked the means. He also felt that because she was not prepared to
live with her husband because he had remarried, but that this was not a grounds for khula
divorce. Her appeal was dismissed in limine.

Anjana Kishore vs. Puneet Kishore

Anjana Kishore was a transfer petition before the Supreme Court seeking transfer of divorce
petition filed by the respondent husband before the family court at Bandra, Mumbai to the family
court at Saharanpur, U.P. after the noticed in this petition, efforts were made settlement.
In the case of Anjana Kishore vs. Puneet Kishore24, a three Judges-Bench of the Supreme Court
while hearing an application for transfer of a matrimonial proceedings, on the prayer of both the
parties, gave liberty to the parties to file joint application for divorce under Section 13B of the
Act before the Family Court with a direction to the said Court to dispense with the requirement
of complying with the provision of the waiting period in exercise of power conferred under
24 (2002) 10 SCC 194
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Article 142 of the Constitution of India by specifically recording that such waiting period is
otherwise required to be maintained. The following observations of the Supreme Court in the
said decision are quoted below25:
In view of the developments which have taken place during the pendency of proceedings in this
Court, we decline to transfer the case from the Family Court at Bandra, Mumbai to the Family
Court at Saharanpur. We, however, direct that as agreed to by learned counsel for the parties, a
joint petition shall be filed by the parties before the Family Court at Bandra, Mumbai for grant
of divorce by mutual consent. Terms of compromise as filed before us shall also accompany the
joint petition. An application for curtailment of time for grant of divorce shall also be filed along
with the joint petition. On such application being moved the Family Court may, dispensing with
the need of waiting for six months, which is required otherwise by subsection (2) of Section 13-B
of the Hindu Marriage Act, 1955, pass final order on the petition within such time as it may
deem fit. This direction we are making under Article 142 of the Constitution, as looking at the
facts and circumstances of the case emerging from pleadings of the parties and disclosed during
the course of hearing, we are satisfied of the need of making such a direction to do complete
justice in the case. (Emphasis supplied by us).
This direction was made by the supreme court by invoking its extraordinary power under article
142 of the constitution "as looking at the facts and circumstances of the case emerging from
pleadings of the parties and disclosed during the course of hearing," the court was satisfied of the
need of making such a direction "to do complete justice" in the case.26

CONCLUSION
The position of law with reference to divorce by mutual consent is identical for Hindus, Parsis
and marriages registered under the Special Marriage Act. Researcher feels that divorce by mutual
consent is not swamping all other grounds of divorce in these cases. To begin with there are
certain fixed requirements laid down in order to attain a decree of dissolution of marriage by
divorce by mutual consent. An application for divorce by mutual consent can only be made by
both the parties to the marriage together on their ground that they have been living separately for
one year or more, that they have not been able to live together, and have mutually agreed that the
25 Id. para 3
26 Ibid.
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marriage should be dissolved. Thus it can be seen that there are many grounds for divorce which
have been mentioned in the previous chapter which can in no way be brought under divorce by
mutual consent. Any situation in which only one party wishes to get a divorce would require that
there be other grounds for divorce since mutual consent is unavailable. Further though the courts
have occasionally brought cases for divorce filed under different provisions under this one, it is
only for the benefit of the parties and the promulgation of justice and has only been done when
neither party wishes to continue with the marriage. The law for Parsis and couples whose
marriages are registered under the Special Marriges Act is the same as that mentioned above.
As per Muslim Law, divorce by mutual consent can take place in two ways. In the case of
Mubarrat, both partners wish to dissolve the marriage & either of them can make the offer for
divorce, which becomes when the other party accepts.In the case of Khula, the wife requests
dissolution of the marriage and agrees to pay a mutually accepted consideration to the husband
for her release. the dissolution becomes complete when the husband accepts the offer. In the case
of Muslim law Divorce by mutual consent is the only way by which the woman may end the
marriage and this certainly does not swamp the other grounds for divorce like talak where the
everything is in the hands of the man.

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