Tag Archives: divorce by mutual consent

Permanent Alimony – After Passing of Divorce Decree

In the event permanent alimony has not been granted probably for the reason that no such application was moved and pressed for, the same can be applied even after passing of the decree. Section 25 of the Hindu Marriage Act itself envisages that the wife can initiate proceedings for grant of permanent alimony even after the decree of divorce. Therefore, the court does not become functus officio with the passing of the decree and continues to have jurisdiction to award alimony thereafter. Smt. Poonam Sharma v. Vishnu Kumar, 2018 (130) ALR 490.

 

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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The second sub-part contemplates that if the petition is not withdrawn in the meantime, the court shall, on being satisfied after hearing the parties and after making inquiries that the averments in the petition are true, pass a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 The aforesaid time limit is not for withdrawal of the petition or consent, rather consent can be withdrawn at any t ime before a decree of divorce is passed.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.

 

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Divorce by Mutual Consent – Cooling off period

Section 13-B of the Hindu Marriage Act, 1955 states as under:
13-B. Divorce by mutual consent.—(1) 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 together, whether such marriage was solemnized 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.
(2) On the motion of both the parties made not earlier than six months after the date of the 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.
In a recent judgment of the Supreme Court – Devinder Singh Narula v. Meenakshi Nangia, it was held as under:
Section 13-B itself provides for a cooling off period of six months on the first motion being moved, in the event the parties change their minds during the said period. Accordingly, after the initial motion and the presentation of the petition for mutual divorce, the parties are required to wait for a period of six months before the second motion can be moved and at that point of time, if the parties have made up their minds that they would be unable to live together, the court, after making such inquiry as it may consider fit, grant a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.
It is no doubt true that the Legislature had in its wisdom stipulated a cooling off period of six months from the date of filing of a petition for mutual divorce till such divorce is actually granted, with the intention that it would save the institution of marriage. It is also true that the intention of the legislature cannot be faulted with, but there may be occasions when in order to do complete justice to the parties it becomes necessary for this Court to invoke its powers under Article 142 in an irreconcilable situation. In fact, in Kiran v. Sharad Dutt, (2000) 10 SCC 243, which was considered in Anil Kumar Jain v. Maya Jain, (2009) 10 SCC 415, after living separately for many years and 11 years after initiating the proceedings under Section 13 of the Hindu Marriage Act, the parties filed a joint application before the Court for leave to amend the divorce petition and to convert the same into a proceeding under Section 13-B of the Act. Treating the petition as one under Section 13-B of the Act, the Court by invoking its powers under Article 142 of the Constitution granted a decree of mutual divorce at the stage of the SLP itself. In different cases, in different situations, the Court has invoked its powers under Article 142 of the Constitution in order to do complete justice between the parties.

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