The Delhi High Court has clarified that a divorce by mutual consent under Section 13B of the Hindu Marriage Act (HMA) cannot arise merely from separate divorce petitions filed independently by a husband and wife. The Court emphasized that mutual consent must exist as a pre-existing, unequivocal agreement between the parties before any proceedings under Section 13B are initiated. Without such agreement, a court cannot treat independent fault-based petitions as applications for mutual consent divorce.
The case involved a husband and wife who had filed separate petitions seeking dissolution of their marriage. The husband filed on the grounds of cruelty, while the wife additionally invoked adultery. The Family Court, however, treated the two petitions as if they constituted a mutual consent divorce application and passed an order dissolving the marriage under Section 13B. The wife challenged this order, contending that there was no genuine mutual consent at the time of filing and that the Family Court had erred in recharacterizing the separate petitions as a joint mutual consent application.
The High Court examined the statutory scheme of Section 13B, noting that it requires the parties to jointly present a petition and demonstrate their mutual agreement to dissolve the marriage. The Court stressed that mutual consent is not a matter that can be inferred from separate, independent petitions, nor can it be fabricated after the fact. Recasting independent fault-based petitions as mutual consent applications undermines the legislative safeguards designed to ensure that a divorce by mutual consent is truly voluntary and agreed upon by both parties.
The Court allowed the wife’s appeal and set aside the Family Court’s order granting the mutual consent divorce. Both petitions were restored for fresh adjudication under the appropriate grounds originally invoked. The High Court clarified that for a divorce under Section 13B, the parties must have a prior, express, and unequivocal agreement to part ways. Mutual consent must exist at the time of filing and cannot be substituted retroactively by the court.
This ruling highlights the importance of maintaining the integrity of Section 13B proceedings. It reinforces that a divorce by mutual consent requires clear and genuine agreement between spouses, and courts cannot bypass this requirement by treating separate independent petitions as a joint application. The judgment serves as a significant reminder that procedural and statutory safeguards in divorce proceedings must be strictly followed to protect the rights of both spouses.
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