Divorce with Mutual Consent and living separately

It is usually been stated that relationships are made in heaven and couples simply meet each other on earth and marriage has continually been considered as a holy relationship in each religion across the world. Marriage is taken into consideration as a relationship between the whole families not only of two people. Although marriage remains an agreement and like all different sorts of agreement it can also come to an end. The end can be mutual or unilateral; the provision of the same is stated under section 13 of Hindu Marriage Act, 1955.

Airing about mutual consent, it is stated under section 13 clause (B) of Hindu Marriage Act, 1955. In a case where none of grounds available in section 13 for divorce is available, but the parties decide they do not want to remain married to each other or cannot live with one another they can seek divorce by mutual consent under Section 13B of the Hindu Marriage Act. Divorce by mutual consent can be granted if parties have been living separately for 1 year or more prior to the filling of divorce petition. Even though the parties are living together under the same roof but have no good terms can qualify as living separately.

Living separately is one of the principal essentials of divorce by mutual consent. Section 13(B) of the Act prescribes that in order to mutually dissolve a marriage, the spouses should be living separately for a period of at least 1 year before filing the petition. This period of one year where the parties have lived separately must be immediately before the filing of the petition. “Living Separately” in the context of Section 13B does not necessarily mean physically living in different places. The parties could be living in the same house, sharing the same roof but there can still be a distance between the two. If that is the case then they are not considered to be living as husband and wife, which qualify as living separately.

In the case of Amardeep Singh v, Harveen Kaur, Hono’ble Supreme court has observed that the couple had internal disputes and their married life was not the best one. The disputes escalated really bad and many civil and criminal proceedings were followed. They mutually decided to resolve all the disputes and file for divorce by mutual consent. The custody of their children would be with the husband, and permanent alimony was paid to the wife. After all these issues were mutually sorted by the parties they just wanted a quick divorce and sought to waive off the waiting period. The parties could no longer be with each other and the waiting period would only prolong their agony. Keeping this in view, Hono’ble Supreme Court laid down the waiting period of six months can be waived off if the court is satisfied that the spouses have lived separately for more than the statutorily prescribed time of at least one year and have settled the issues of alimony and custody of children. Hono’ble Supreme Court also observed that the waiting period will do nothing but merely prolong the misery and sufferings of the parties unable to live together anymore. In another case of K. Omprakash v. K. Nalini, the parties were not happy with their marriage anymore and were allegedly having extramarital relationships. It was the contention of the petitioner that they were living apart without ever visiting each other for more than a year and so, there was no scope of reconciliation between them. They blamed each other for their suffering and unhappiness. Both alleged each other to be involved in a series of illicit relationships but denied ever being involved in such relationships themselves. There was no other option left but only to file for divorce by mutual consent. The marriage had suffered irretrievable damage and had reached a point of no return. Both parties prayed for an instant divorce and a waiver of the waiting period. Observing that the parties had lived separately for long enough and there was no scope of getting the marriage to work again. The High Court of Andhra Pradesh held that Section 13B (2) of the Hindu Marriage Act should be read not as a statutory mandate, but only as a directory.

So the question whether the waiting period is mandatory in mutual consent is hence answered. The waiting period which was once mandatory in nature now remains discretionary.

Conclusion

It is said that relationships are made in heaven, however sometimes the holy relationships do not work for long on Earth. Many times, in a marriage it so happens that the spouses can’t stand each other and can no longer lives together happily. That is when they opt for divorce by mutual consent and separate their ways. Although in the case where the spouses are not in the good terms from a long time can skip the waiting period which was mandatory back then even in divorce by mutual consent.