Divorce by Mutual Consent, Alternate Relief and Remarriage

The six months: mandatory or directory

This is the question MU sets, and it has a clear answer.

Amardeep Singh v. Harveen Kaur, (2017) 8 SCC 746, decided on 12 September 2017.

Facts. The parties married in January 1994 and had two children, born in 1995 and 2003. They had lived separately since 2008, and their disputes had produced both civil and criminal proceedings. On 28 April 2017 they arrived at a settlement resolving everything between them and sought a divorce by mutual consent, asking that the six-month wait for the second motion be waived.

Held. The period of six months in section 13B(2) is directory and not mandatory. Where there is no possibility of the parties resuming cohabitation and there are chances of alternative rehabilitation, it is open to the court to waive it in the exercise of its discretion. The Court added that the waiver application may be filed one week after the first motion, giving reasons; that the discretion is the concerned court's; and that proceedings may be conducted by video conferencing, and representation permitted through close relations such as parents or siblings where a party cannot appear in person for a just and valid reason.

Why it matters here. The waiver is available in the family court itself. It does not require the parties to reach the Supreme Court, and that is the practical difference between this case and the one that follows.

Article 142, and irretrievable breakdown

Now the harder half.

The Act contains no ground of irretrievable breakdown of marriage. Every ground in section 13(1) and 13(2) requires fault or a specific state of affairs, and Parliament has never added breakdown to the list despite repeated recommendations.

Shilpa Sailesh v. Varun Sreenivasan, Transfer Petition (Civil) No. 1118 of 2014, decided on 1 May 2023 by a Constitution Bench of five judges: Sanjay Kishan Kaul, Sanjiv Khanna, Abhay S. Oka, Vikram Nath and J.K. Maheshwari JJ.

Facts. A reference to a larger Bench, arising because benches of this Court, some High Courts and even some family courts had been dispensing with or reducing the six-month period where there was no possibility of the spouses cohabiting, while earlier decisions had said the power did not exist. Two questions were referred.

Held. Both questions were answered in the affirmative:

1. The Supreme Court may, under Article 142(1) of the Constitution, waive the procedural requirement of the second motion under section 13B(2). The power is to be exercised with care and caution, keeping in mind the factors stated in Amardeep Singh and in Amit Kumar. The Court may also quash and set aside other proceedings and orders, including criminal proceedings.
2. The Supreme Court may, under Article 142(1), dissolve a marriage on the ground of its complete and irretrievable breakdown, even where the other spouse opposes the prayer. The discretion is exercised to do complete justice where the facts established show that the marriage has completely failed, that there is no possibility that the parties will cohabit, and that continuation of the formal legal relationship is unjustified. As a court of equity, the Court must also balance the circumstances and background of the party opposing dissolution.

How to write this in an answer

State it as two propositions and then reconcile them.

Proposition one. Irretrievable breakdown is not a ground of divorce under the Hindu Marriage Act. A family court or a High Court cannot grant a divorce on that basis alone, because it can only apply the statute.

Proposition two. The Supreme Court can dissolve such a marriage under Article 142(1), which empowers it to pass any decree necessary for doing complete justice, and Shilpa Sailesh holds that it may do so even over one spouse's objection.

Why it matters here. It resolves what otherwise reads as a contradiction. The power is constitutional, not statutory. It belongs to one court only and is discretionary. It does not add a ground to section 13, and it does not become available to any other court. So the law of divorce for everyone except a litigant who reaches the Supreme Court remains the law of fault plus mutual consent.

Section 13A: alternate relief

Section 13A provides that in any proceeding under the Act, on a petition for dissolution of marriage by a decree of divorce, the court may, if it considers it just so to do having regard to the circumstances of the case, pass instead a decree for judicial separation.

There is an exception, and it is examinable: section 13A does not apply where the petition is founded on the grounds in clauses (ii), (vi) and (vii) of section 13(1), that is, conversion to another religion, renunciation of the world by entering a religious order, and not having been heard of as alive for seven years.

The logic is that for those three grounds a lesser decree would be pointless. A spouse who has converted, renounced the world or disappeared for seven years is not going to be brought back by an order that merely suspends cohabitation.

Section 13A is one of the 1976 reconciliation provisions and works with section 23(2), which requires the court to attempt reconciliation. It lets a court that thinks the marriage may yet be saved give the lesser relief without dismissing the petition.

Section 14: no divorce within one year of marriage

Section 14(1) provides that it shall not be competent for any court to entertain a petition for dissolution of marriage unless at the date of the presentation of the petition one year has elapsed since the date of the marriage.

The proviso allows the court, on an application made in accordance with rules made by the High Court, to allow a petition to be presented before one year has elapsed on the ground that the case is one of exceptional hardship to the petitioner or of exceptional depravity on the part of the respondent.

The proviso then guards against abuse of the leave. If at the hearing it appears that the petitioner obtained leave by any misrepresentation or concealment of the nature of the case, the court may, if it pronounces a decree, do so subject to the condition that the decree shall not take effect until the expiry of one year from the date of the marriage; or it may dismiss the petition without prejudice to a fresh petition brought after the year on the same or substantially the same facts.

Section 14(2) directs the court, in disposing of an application for leave, to have regard to the interests of any children of the marriage and to whether there is a reasonable probability of a reconciliation before the year expires.

The one-year bar applies to divorce. It does not bar a petition for judicial separation, for restitution, or for a decree of nullity. That distinction is a favourite one-sentence question.

Section 15: when a divorced person may marry again

Section 15 provides that when a marriage has been dissolved by a decree of divorce, and either there is no right of appeal against the decree, or the time for appealing has expired without an appeal having been presented, or an appeal has been presented but has been dismissed, it is lawful for either party to marry again.

The section is about finality. A decree that is still open to appeal, or under appeal, is not a safe foundation for a second marriage, because if it is set aside the second marriage would have been contracted during the subsistence of the first. Section 15 therefore waits for the appellate route to close.

A worked example

Anita and Vikram married in June 2023 and separated in August 2023. In February 2024 they agree to divorce and file a joint petition. They want it over quickly.

Can they file at all? Section 14 bars a petition for divorce within one year of the marriage, unless the court allows it on the ground of exceptional hardship to the petitioner or exceptional depravity on the part of the respondent, and even then it may refuse a decree until the year is out if it finds misrepresentation or concealment. Their marriage is under a year old at the time they agree, so leave is needed.

What must a section 13B petition show? 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.

Have they lived separately for a year? From August 2023, so not until August 2024.

What is the two-motion requirement? Section 13B(2): on the motion of both parties made not earlier than six months after the presentation of the petition and not later than eighteen months, and if the petition is not withdrawn in the meantime, the court passes the decree. Consent must be alive at the second motion.

Can the six months be waived? Amardeep Singh v. Harveen Kaur: the period is directory, not mandatory, and the family court may waive it, on conditions the judgment sets out, including that the statutory period under section 13B(1) has expired before the first motion, that mediation has failed, and that the parties have genuinely settled maintenance and custody. The waiver application may be filed a week after the first motion.

What if only one of them later changes their mind? The decree cannot be passed: consent must subsist at the second motion.

And if they say the marriage has irretrievably broken down? That is not a ground in the Act. On Shilpa Sailesh v. Varun Sreenivasan the Supreme Court may dissolve a marriage on that basis under Article 142, and may do so even over the objection of a party; a family court cannot.

Suppose the court thinks separation would be better than divorce. Section 13A: on a petition for divorce it may pass a decree for judicial separation instead, except where the ground is conversion, renunciation or presumed death.

When may they remarry? Section 15: when the marriage has been dissolved and either there is no right of appeal, or the time for appealing has expired without an appeal, or an appeal has been dismissed.

What it does NOT mean

Section 13B does not require a year's separation before the agreement. It requires that they have been living separately for a year or more when the petition is presented.

"Living separately" is not living in different houses. It means not living as husband and wife.

The six-month period is not mandatory. On Amardeep Singh it is directory and may be waived by the family court on the conditions there set out.

Waiver is not automatic. It is for the court, on an application, and only where the conditions are satisfied.

A petition once filed is not irrevocable. Either party may withdraw before the second motion, and consent must subsist at it.

Irretrievable breakdown is not a ground. Only the Supreme Court may dissolve on it, under Article 142.

Section 14 is not an absolute bar. Leave may be given for exceptional hardship or exceptional depravity.

Section 15 does not require an appeal to be filed. It requires that there be no right of appeal, or that the time has expired, or that an appeal has been dismissed.

Quick revision

• s.13B(1): a joint petition on the ground that the parties have been living separately for one year or more, that they have not been able to live together, and that they have mutually agreed to dissolve the marriage.
• s.13B(2): a second motion by both parties not earlier than six months and not later than eighteen months after presentation, the petition not being withdrawn; consent must subsist.
• Amardeep Singh: the six-month period is directory, and the family court may waive it, the application being made a week after the first motion, where mediation has failed and maintenance and custody are settled.
• Shilpa Sailesh: irretrievable breakdown is not a statutory ground; the Supreme Court may dissolve on it under Article 142, even over a party's objection.
• s.13A: on a petition for divorce the court may grant judicial separation instead, except where the ground is conversion, renunciation or presumed death.
• s.14: no petition within one year of the marriage, unless leave is given for exceptional hardship or exceptional depravity.
• s.15: remarriage is lawful when there is no right of appeal, or the time to appeal has expired, or an appeal has been dismissed.

Test yourself

1. What must be proved for divorce by mutual consent? That the parties 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 parties made not earlier than six months and not later than eighteen months after presentation of the petition, and the petition not having been withdrawn, the court passes the decree.

2. Is the six-month period mandatory? No. In Amardeep Singh v. Harveen Kaur the Supreme Court held it directory, and laid down that a family court may waive it where the statutory period under section 13B(1) has expired before the first motion, mediation and conciliation have failed, the parties have genuinely settled their differences including maintenance and custody, and the waiting period would only prolong their agony; the application may be moved a week after the first motion.

3. Is irretrievable breakdown a ground of divorce? No. It is not a ground under the Hindu Marriage Act. In Shilpa Sailesh v. Varun Sreenivasan the Supreme Court held that it may dissolve a marriage on that basis in exercise of its power under Article 142 of the Constitution, and may do so even if one party opposes; no other court has that power.

4. When may a divorced person marry again? Under section 15, when the marriage has been dissolved by a decree of divorce and either there is no right of appeal against the decree, or, if there is such a right, the time for appealing has expired without an appeal having been presented, or an appeal has been presented and dismissed.