The Rights of the Deceased: Moral Rights Incidental to Copyright Law
- Vanshika Agrawal
- 2024-04-25
When two people, arranged in a relationship called marriage. Are unable to connect with each other, the reasons might range from one to many. They seek to break it off by taking a divorce as specify by the Act their marriage was register under. In this article, we will be discussing the comparatively easier. Less painful divorce that is divorce by Mutual Consent. According to The Hindu Marriage Act, 1955. Divorce by Mutual Consent has illustrated in Section 13B of The Hindu Marriage Act, 1955. In this type of situation, both the parties mutually come to the decision of separating. And are suppose to be on the same grounds regarding the decision of a divorce. The prerequisites or the essentials of this type of divorce are as follows:
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1 Parties should be living separately:
2.2 Amardeep Singh v. Hardeep Kaur
The first prerequisite that is of importance has illustrated in Section 13B (1) of The Hindu Marriage Act, 1955. Section 13B of the said Act was insert by the Marriage Law (Amendment) Act, 1976. A petition for divorce under this type of arrangement can only be filed on the ground that they have been living separately for a period of one year or more immediately preceding the presentation of petitionand that they have mutually agreed that the marriage should be dissolved.
It is to be understood that “living separately” emphasizes not living like husband and wife and it is insignificant if both the parties live under the same roof. The same had been decided in the case of Sureshta Devi v. Om Prakash1 that went on to say that, living separately does not have to mean living in different places. It should be evident that the parties have no desire to perform marital obligations. This consent of separation shall not given through coercion, undue influence, or fraud.
According to Section 13B (1) it is also necessary to see that the parties are not able to live together anymore in spite of trying and making amends.
“In the case of Pradeep Gasp &anr v. Govt of NCT Delhi2, the parties were hitched and gave birth to a girl as a result of their wedlock. But, due to
inconsistent contrasts between them, they were not being able to live together with each other and despite their efforts, they were unable accommodate their marriage. An agreement was reach about the child and a mutual divorce had ascertain.”
According to Section 13B (2) of the Act, once the parties have filed a petition for mutual divorce after being living separately for a period of one year or more, the court gives a period of 6 to 18 months to the parties. This period is, the period of Interregnum which is intend to give time and opportunity to the parties to reflect on their move.3 In this transitional period the parties or either of the party may have second thoughts about their actions.
In this period, any time after 6 months and before the completion of 18 months, either party can revoke or withdraw their petition for a divorce, but, if the same has not been done, the court shall, on being satisfied after hearing the parties and after making such inquiry as it thinks fit, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree. If either party wants to revoke the petition, the divorce will no longer come under “Divorce by Mutual Consent”.
On the other hand, in certain situations, the waiting period or the period of interregnum is not necessary and is not by the courts. As a result, there have been conflicting views of the courts on whether they should wait for a period of six months or not.
This is so because, in the case of Grandhi Venkata ChittiAbbal4and Dinesh Kumar Shukla v. Neeta5it was held that the waiting period of six months is compulsory or else it would affect an important aspect of Section 13B(2) of the Hindu Marriage Act,1955. The period can be reduce from six months at the discretion of the court. The Supreme Court by its powers vest according to Section 142 of the Indian Constitution can grant a divorce without waiting for 6 months if it is satisfy that the marriage is irretrievably broken down.
On the other hand, it was decide in the case of Amardeep Singh v. Hardeep Kaur6 by the
Supreme Court of India that the period of “cooling-off” is not necessary as it unnecessarily extends the duration of divorce when the motive of a mutual divorce is to reduce time and pain. In the case, there was no hope of the parties getting back together, and the waiting period was thus waive off to not prolong the agony.
Thus, these are the essentials that are require before a couple can apply for a divorce by mutual consent. In the absence of these, the procedure cannot be fulfill.
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