Traditionally, Hindu marriages have been revered as a sacrament symbolising the union of two souls. Perceived initially as an enduring and permanent institution in ancient Hindu law, “divorce” was introduced as part of Hindu personal law, specifically under the Hindu Marriage Act, 1955 (HMA), reflecting the evolving societal norms.
While the pandemic may be in the past, its lingering effects on marriages persist. Publicly available sources suggest a significant surge in divorce and child custody cases due to the pandemic, lockdowns, and the widespread adoption of remote work, with Mumbai experiencing a nearly threefold increase in such cases.
Divorces are often complicated and contentious, making mutual consent divorce an appealing option for amicably resolving marital disputes. Courts play a role in facilitating consensus between parties, sometimes even waiving procedural requirements. In May 2023, a Constitution Bench of the Supreme Court of India reaffirmed its authority to dissolve marriages based on irretrievable breakdown, a ground not explicitly stated in the HMA, using Article 142(1) of the Indian Constitution. The Court asserted the power to dissolve marriages by mutual consent, bypassing HMA procedural requirements.
This article explores the legal aspects and jurisprudence surrounding obtaining a divorce by mutual consent and examines whether, once given, either party can revoke such consent.
Mutual Consent Divorce by Hindu Law
What does mutual consent divorce entail?
In cases where the husband and wife have resided apart for a year or longer, they can reach a mutual agreement to dissolve their marriage. They can then jointly file a divorce petition in court, citing their inability to cohabit and expressing their desire for a divorce based on mutual consent.
Process and timelines
The Hindu Marriage Act (HMA) stipulates a mandatory cooling-off or waiting period of at least six months, starting from the divorce petition’s filing date. This period is intended to give the parties time to explore potential settlements and the possibility of reconciliation. If the petition remains unwithdrawn after the initial six months but before 18 months from the filing date, the court, following a hearing and necessary inquiries, may issue a divorce decree, officially terminating the marriage.
Similarly, the Special Marriage Act, 1954 (SMA) aligns with the HMA regarding mutual consent divorce.
It permits couples to seek divorce if they meet specific criteria:
- having lived separately for a year or more
- facing an inability to cohabit, and
- mutually agreeing on the dissolution of the marriage.
The SMA also imposes a cooling-off period of 6 months in line with the HMA.
Is the 6-Month Cooling-Off Period Mandatory or Merely Directory?
The compulsory cooling-off period is evident in the Hindu Marriage Act (HMA), where the legislature explicitly mandates a minimum period of 6 months for couples to contemplate their decision and, if possible, attempt reconciliation. Judicial interpretations have consistently emphasised that interpreting a mandatory provision, such as Section 13-B of the HMA, as a directory could undermine the law’s intended purpose. Various court decisions affirm that Section 13-B is inherently mandatory, asserting that courts cannot disregard the substantive provisions of the statute and issue orders on matters that can only be resolved through the prescribed statutory mechanism.
Is it Possible to Waive the Cooling-Off Period?
On the contrary, courts have acknowledged that Section 13-B allows parties to dissolve a marriage when it has irretrievably broken down mutually. The aim is to facilitate their rehabilitation without unnecessary hardship. While the cooling-off period safeguards against impulsive decisions, it is not the legislative intent to prolong a purposeless marriage or extend the suffering of parties when reconciliation is improbable.
The Supreme Court (SC) has emphasised that the 6-month is not obligatory. The court retains the discretion to waive the cooling-off period if there is no possibility of cohabitation resumption and there are opportunities for alternative rehabilitation. While preserving marriages is a priority, the court should be able to empower parties with a better option and future when reunions are unlikely and rehabilitation prospects exist. Several High Courts have adopted a similar approach, exercising discretion to waive the waiting period on a case-by-case basis, asserting that the 6-month duration is discretionary.
In practice, courts may waive the cooling-off period based on the specific facts and circumstances. Such instances include cases where
- the marriage has irretrievably broken down
- parties have been engaged in prolonged disputes with no chance of reconciliation
- disputes have been settled through mediation; or
- not waiving the waiting period would jeopardise the prospects of the parties.
Moving Forward
In light of the discussion above, the legal landscape surrounding the mandatory or directory nature of the cooling-off period remains in a state of development. The judicial challenge lies in determining whether, under extraordinary circumstances, the legislature intended for the courts to deviate from a “literal interpretation” of the law and instead adhere to the “spirit” of the law. In essence, courts generally uphold the significance and gravity of this legislative directive, suggesting that the cooling-off period should only be waived in exceptional cases, taking into account each case’s specific facts and underlying circumstances.
Is Unilateral Withdrawal of Consent Permissible After Granting?
It is well established that merely filing the petition for obtaining a divorce by mutual consent does not authorise the court to make a decree for divorce. Mutual consent of both parties is required at every stage for an application under Section 13-B of the HMA to succeed, which includes
- when the parties move to the court at the first instance with the divorce petition;
- when the parties approach the court after the waiting period;
- when the court inquires Section 13-B(2) of the HMA; and
- at the time when the decree of divorce is granted.
Therefore, it is only on the continued mutual consent of the parties that the court can pass a decree for mutual consent divorce.
Can Consent be Withdrawn Unilaterally Before Divorce is Granted?
The Hindu Marriage Act (HMA) explicitly acknowledges the unrestricted right of the involved parties to retract the consent previously given to a divorce petition. Such withdrawal of consent is sanctioned by the statutory provision outlined in Section 13-B(2) of the HMA, permitting the parties to do so for any reason whatsoever.
Underscoring the significance of “consent,” the Supreme Court has affirmed that any party involved in a divorce petition has the unilateral right to withdraw their consent. The court recognised that the statutory cooling-off period aims to give parties time to reflect, seek advice from relatives and friends, and potentially reconsider their decision. During this transitional phase, if either party expresses the withdrawal of consent or declares being unwilling to proceed with the divorce, the court is precluded from issuing a decree of divorce by mutual consent. This perspective was further underscored by a subsequent Supreme Court ruling, wherein the court dismissed a husband’s petition for divorce by mutual consent due to the wife withdrawing her consent before the second motion.
In essence, both parties possess an unrestricted right to unilaterally withdraw their consent, irrespective of any prior undertaking in legal proceedings or recorded in settlements, joint statements, or consent orders, whether inside or outside the court.
Genuine and Legitimate Withdrawal of Consent is Essential
While the parties possess an unequivocal right to retract their consent, it is crucial to acknowledge that there have been instances where courts deemed the withdrawal of consent as lacking genuineness or propriety, leading to the non-recognition of such withdrawals.
The withdrawal of consent needs to be genuine, and neither party should harbor ulterior motives, such as exploiting the other party, attempting to extort additional financial benefits, or acquiring further properties. An illustrative case heard by the Supreme Court involved a wife withdrawing her consent after obtaining valuable property rights as part of the divorce settlement. Despite her refusal to cohabit and proceed with the divorce, the court granted the divorce and upheld the settlement agreement. Therefore, while the right to withdraw consent is unrestricted, it is imperative to ensure that the reasons for withdrawal are legitimate, reasonable, and genuine. Additionally, it is noteworthy that consent cannot be withdrawn once the divorce has been officially decreed.
Closing Thoughts
In Hindu law, marriage is traditionally viewed as an unbreakable and sacred union, with the concept of divorce being relatively modern and subject to continuous evolution. When dealing with these matters, courts must navigate carefully, respecting not only the sanctity of marriage but also considering the diverse interests of the involved parties. Consequently, there exists a divergence in judicial opinions concerning mutual consent divorce cases. While courts generally adhere to the literal interpretation of the law, some cases witness a more lenient and purposive interpretation of legal provisions to ensure justice prevails among the stakeholders.
In our perspective, the law should be balanced with equity, and each case should be adjudicated based on its unique facts and circumstances. Although the cooling-off period is mandated by statute and proves essential in situations where there is potential to salvage the marriage, enforcing it when it is irreparably damaged may unnecessarily complicate the divorce process. Regarding the withdrawal of consent, it is crucial to recognise that the foundation of “mutual consent” divorce lies in the primary importance of the consent of both parties. While parties retain the right to withdraw consent, it is essential to exercise this right judiciously, ensuring that such withdrawal does not unfairly prejudice the other party.