Marriage is considered a sacrament under Hindu law. Although it has some contractual connotations, the sacramental aspect of marriage has always been considered to be more pronounced and prominent. A general interpretation of ancient Hindu texts states that the bond of marriage once made, is supposed to last forever.[1]

But, even the authors of those ancient texts saw the distance between these ideals and the reality they actually knew. The concept of divorce, in some form or the other, has been a part of society as long as the institution of marriage has. In Hinduism, various scholars expounded on the subject of divorce and conditions under which it could be granted.[2] Now, however, there are various grounds under which divorce is granted.

The remedy of divorce is available to couples even if they mutually agree to end their marriage.[3] Hence, a fault, guilt or breakdown are not necessities for getting a divorce. S.13B of Hindu Marriage Act, 1955(Hereafter the act) is based on the consent theory. It states that as mutual consent of both parties is a necessity for marriage, their mutual consent should hold a similar value in matters of ending that marriage.

In India, the consent theory has a heavy discourse surrounding it. Many people believe that it threatens the institution of marriage itself. However, there are many voicing the need to decrease restrictions on the current iteration of the consent theory in the form of an amendment to S.13B of the act. One has to wear both these lenses to see the true colours of divorce by mutual consent.
 

History of Divorce

Divorce is as old a part of Hindu culture as the institution of marriage itself.[4] Various ancient scholars and authors of Hindu scriptures have described conditions under which divorce should be granted to a couple. However, most of these conditions are gender-specific and rarely give any rights to women. Also, there are no instances of allowance of divorce by mutual consent. In the Bodhayana Smriti, it is stated that a woman should be divorced if she has a bitter tongue, is unable to give birth to male children, or loses her children soon after their birth. He strictly believed in the Hindu Philosophy that everyone is under a debt (Pitririna) to their ancestors which can be repaid only after male children are born to them.[5]

Brihad Yama Smriti states that divorce should be counselled only in the extreme cases where the wife conceives a child with someone other than her husband.[6] In comparison to some of the other Smritikars, Yama was one of the most emphatic ones.

Brihaddharita Smriti states that a woman who is guilty of incendiarism or poisons her husband and/or children, or is a bad termagant, or is a terror to the whole world, or prevents her husband from committing acts of welfare should be divorced.[7] Although these conditions favour men and mostly don’t confer any rights upon women, one can’t help but notice that unlike some of the other Smritis’ conditions, Brihaddharita’s conditions have relevance and some possible iterations in modern times.

Manu Smriti advocated conditions of divorce stated by Bodhayana Smriti to the most degree and further expounded on it. Manu said that women who suffered from leprosy, squandered away their husband’s wealth, ill-treated the house servants, indulged in intoxicants and women who committed immoral acts just for the sake of thrill should be divorced immediately.

To make matters worse, Manu states that if the husband leaves his wife and goes somewhere with a specific purpose, she should wait for him for a certain number of years(depending on the purpose of leaving). And if the husband does not return in that time, it is the wife’s duty to find him and voluntarily go live with him.[8] It is unfortunate that such Smriti is one of the most important forms of scripture and is a pillar of the modern understanding of Hinduism.[9]

Vashista Smriti states that if any of the spouses commits a sinful, vicious or immoral act; they should be divorced. But, then he too states specific conditions where women can be divorced by their husbands. Vashista states that a woman who attempts to take her husband’s life commits infanticide or wilfully aborts her children should be divorced.

Gautama was one of the first Smritikars to openly advocate women’s rights. He stated that a woman had the right to divorce her husband under certain conditions. If the husband disappears and there is no trace of him, if he runs away or becomes an ascetic, if he indulges in activities considered to amount to vicious conduct like drinking, stealing or consorting with prostitutes etc., his wife should have the right to divorce him.[10] One of the earliest feminists( according to his time at least) was Atri. The Atri Smriti states that a woman who commits any improper acts under the stimulus of maladjustment to her new home, should not be divorced or abandoned. He also stated that a woman who is forcibly violated or is abducted by thieves, should not be abandoned by her husband.[11]

Divorce has also been a part of Islamic law for a long time. It even has provisions for divorce by mutual consent. The consent theory finds its application in the Islamic doctrines of Khula and Mubarat. The doctrine of Khula states that a marriage can be dissolved by a wife by paying consideration to her husband and ending the contract of marriage. Mubarat, on the other hand, states that when both the husband and wife mutually decide to end their marriage, it is irrevocably dissolved.[12]

However, the light of consent theory shone much later on Christian family law in India. In 2001, the Indian Divorce Act, 1869 was amended to include divorce by mutual agreement under S.10A. of the act in question.[13]
 

Current status of Consent theory in India

Currently, the provision for divorce by mutual consent exists in the Hindu Marriage Act, 1955(as amended in 1976)[14]; Islamic law(Khula and Mubarat)[15]; Parsi Marriage and Divorce Act, 1936(as amended in 1988)[16] and Special Marriage Act, 1954[17]. For the purposes of this paper, the author will primarily focus on the consent theory as under Hindu law.
 

Requirements to get a divorce under S.13B of the Hindu Marriage Act, 1955

1. The parties must be living separately for at least one year,
2. The parties mutually agree that their marriage must be dissolved,
3. The parties are unable to live together,
4. Both parties are required to wait for a period of six months. These six months beginning from the date the parties file a petition for divorce,
5. The petition for divorce has to be presented jointly in court by both the parties[18] and
6. The consent of both the parties must not be obtained via fraud, force or undue influence as mentioned under S.23(1)(bb) of the act.[19]

Whether the waiting period of six months is mandatory or directory

Courts are somewhat flexible and not rigid on the matter of six months of waiting time for the parties after filing of a petition for divorce. The Honourable Supreme Court laid down some principles in Amardeep Singh v. Harveen Kaur which every court has to consider before waiving off the six month waiting period:

1. The period of six months as stated under S.13B(2) and the period of one year as stated under S13B(1) of separation of parties is already over before the first motion;
2. All efforts at reconciliation/reunification/mediation between parties have failed and there is no likelihood of success.
3. Parties have actually settled their differences like custody, alimony or any other such pending issues;
4. The waiting period will most probably result in furthering the agony of both parties.[20]

In Nitin Sudhakar Zaparde v. Nil, the Bombay High court stated that the fact that any of the parties want to remarry is not Germane to the issue of waiver to operate for refusal to grant such waiver. Here the High court said that the provision cannot be read with rigidity as that will make it ineffective.[21]

Further, the need to minimise the agony of estranged couples is conceptualised poetically in Om Prakash v. Nalini:
The great Telugu poet Vemana said that the broken iron can be joined together, but not broken hearts. Parties have been living apart for long and their wedlock has now virtually become a deadlock. Chances of reunion had completely faded away. In these circumstances, we think it just and proper to grant a decree of divorce straightway.[22]

In Dinesh Kumar Shukla v. Neeta, the Madhya Pradesh High court stated that the provisions of S.13B(2) of the Act are directory in nature and not mandatory.[23] A similar view was held in Abhay Chauhan v. Rachna Singh. Here, the court said that when the intention of the Legislature is to prevent couples from living their life in agony because of each other’s presence, the section should be read as directory and not mandatory. Otherwise, the entire purpose is defeated.[24]

Hence, the waiting period of six months after filing the petition to get divorce is not mandatory for parties and there are conditions under which it can be waived.
 

Whether consent can be unilaterally withdrawn

Should any of the parties be able to retract their consent after giving the same while filing the first motion of divorce in court?

Initially, courts were of the opinion that parties should not be allowed to unilaterally withdraw their consent. In Jayashree v. Ramesh, the Bombay High court held that as both parties jointly file for divorce under S.13B of the act, such a petition cannot be withdrawn without the mutual consent of both the parties.

The court believed that time for deciding whether to give consent is before the first petition is filed. If the consent was free and not vitiated, parties would not be allowed to nullify the petition by withdrawing their consent later on.[25]

A similar view was upheld in Nachhattar Singh v. Harcharan Kaur. Here, the court held that if both the parties voluntarily agreed to dissolve their marriage by mutual consent and all other conditions as mentioned under S.13B(1) are fulfilled, no party would be allowed to withdraw their consent.[26]

However, the matter was laid to rest in Sureshta Devi v. Om Prakash by the honourable Supreme court. Here, the court said that the entire purpose of making the parties wait for six months after their first petition was to allow them to reconsider and reflect upon their decision in order to deter them from going through with the divorce. Hence, not allowing parties to withdraw their consent unilaterally would go against the entire idea of the six months waiting period in the first place. The court believes in this case that counselling, introspection, passage of time and good offices of friends and relatives can at times be of great help in ironing out differences.[27] However, withdrawal of consent is not allowed when there is malice in the intentions of the party making such withdrawal.

In Rachna Jain v. Neeraj Jain, the husband withdrew his consent to dissolve the marriage after all settlements were made in pursuance of the dissolution. He not only withdrew his consent, but he had also remarried. If the court were to allow his withdrawal, a bigamous marriage would be created from such order. Hence, the withdrawal was rejected and a decree of divorce was passed.[28]
 

Whether one year separation period is mandatory or directory

A couple has to be living separately for at least a year if they want to file for divorce by mutual consent. The Karnataka High court, however, laid down conditions under which an exemption to the rule of one year could be found. In Sweety EM v. Sunil Kumar, the husband had been living in England and the wife in India. The court observed that there was no reason to hold the couple in matrimonial bondage as there is no chance of their reunion.
 

The following are to be considered before giving the exemption:

1. Maturity and comprehension of spouses,
2. Absence of coercion/intimidation/undue influence,
3. Duration of marriage
4. Absence of the possibility of reconciliation
5. Lack of frivolity
6. Lack of misrepresentation or concealment
7. Age of spouses and the deleterious effect of continuation of sterile marriage on the prospects of remarriage.[29]

In the case of Priya v. Sanjay Gaba, the parties were only two months short of the statutory period of one year. The woman had already found another suitor and the man was going abroad. Both of them would have had to face hardships if the two months period was not waived. Although dismissed in the trial court, when the matter went to High court, the appeal was granted.[30]

The Delhi High court, however, took a different stance on the matter. In the case of Urvashi Sibal v. Govt of NCT, parties had hardly stayed together for a month. One year had not elapsed since their separation and they filed for the waiver of that time period under S.14 of the act for getting a divorce by mutual consent. The plea was dismissed as according to the court, separation for one year is a requirement under S.13B of the act and hence, the waiver cannot be sought under S.14 of the act. It was further observed that the power of waiver of any statutory provision lies only with the Supreme court in exercise of its special jurisdiction under Article 142 of the Constitution.[31]
 

Other Developments via case laws

Numerous case laws have developed the jurisprudence around the consent theory in India over time.
 

Whether silence amounts to withdrawal to consent

there have been instances of court assuming silence as withdrawal to consent. In Suman v. Surendra Kumar, the Rajasthan High court held that a party who initially consents to dissolve marriage via divorce by mutual consent cannot frustrate such agreement and deny divorce to the other party merely by remaining silent. In this case, the husband remained silent after the first petition for getting a divorce had already been filed by the couple jointly. The court said that when the husband left the matter for inference, the inference ought to be drawn in favour of consent rather than for the absence of consent.[32] But, the Honourable Supreme court did not agree to this opinion.

It was clearly reflected in the case of Smruti Paharia v. Sanjay Pahariya. Here, the husband did not appear before the court after six months of the first petition on the stipulated date. Still, the court passed an ex parte decree of divorce in the matter. It was challenged by the husband and the decree was set aside. The apex court disapproved the grant of divorce and observed that as marriage’s primary basis is consent, the same should be held for its revocation too.[33]
 

Whether the bar of delay is applicable

The bar of delay is applicable in most litigative matters. But, in family matters, there are no such bars. It is recognised that there are numerous factors which can cause a delay in family matters. These include interests of children/siblings/parents, social considerations etc. therefore, in Sadhna Gupta v. State of Jharkhand, a couple filed for divorce by mutual consent after living separately for 18 years. The petition was rejected by the court but it was set aside upon appeal.[34]
 

Whether collusion would amount as a bar to divorce by mutual consent

Collusion is no bar to a petition under S.13B of the act. The court observed in Hari Kumar v. Sudha that if an application which in reality merits acceptance is rejected on a hyper-technical approach, the conclusion would be to compel unwilling parties into a relationship. That is not at all the objective of the consent theory.[35]
 

Global application of the consent theory

In 1969, a wave of no-fault divorce began from the State of California in the United States of America when Governor Ronald Raegan introduced Divorce by mutual consent. Now the provision for divorce by mutual consent is available in every state of the USA.[36]

The divorce, dissolution and separation bill has entered the UK parliament on January, 7 this year. It has provisions for a no-fault divorce which will completely change separations in the UK.[37]
The Family Court Act, 1975 established the principle of no-fault divorce in Australia. Couples don’t need to show any fault in each other to be granted a divorce. Here, breakdown of marriage is shown via a separation period of 12 months.[38]

Civil law countries like France have had a much more liberal standpoint when it comes to divorce. Divorce by mutual consent has been a part of France’s laws since 1975.[39] It has now evolved further from a form of litigation to a more administrative process. Since 2016, getting divorce by mutual consent doesn’t require the parties to present themselves before a judge. They merely have to go to a notary, give a fifty Euro fee and then wait for 15 days(to reconsider their choice) to get a divorce.[40] In Germany, breakdown of marriage has to be shown via separation of spouses for at least a year. If the period of separation surpasses three years, consent of both the parties is not required.[41]

Conclusion
Divorce is as important a part of society as marriage as all marriages cannot be sustainable and the best option of damage control there would be ending them. No-fault divorce or divorce by mutual consent is a fairly recent addition to the jurisprudence of divorce and a really integral one. Divorce by fault or ground-based matrimonial litigation is time-consuming and expensive. It also involves a lot of mudslinging and further induces animosity among both parties. The consent theory is a globally accepted principle and is applied in both civil and common law countries.

Within India, it took a fairly long time to include the consent theory in family laws of most religions. But, the evolution of family law will not stop there. Evident from French family laws, there are potential furtherances to the consent theory which may gradually be sought by the Indian populous too. As our society evolves and a man or a woman are seen more as an individual human being without the bias of any societal identities, the concept and institution of marriage will keep on evolving with it. It is the duty of scholars and the state to ensure this evolution and acquire most of its potential benefits while shredding as many cons of such evolution as possible.

End-Notes:

1. IOSR Journal Of Humanities And Social Science (IOSR-JHSS) Volume 20, Issue 7, Ver. VI (July 2015), PP 01-09, http://www.iosrjournals.org/iosr-jhss/papers/Vol20-issue7/Version-6/A020760109.pdf (Last accessed- 08/04/20)
2. R. Naga Raja Sarma. Ethics of Divorce in Ancient India. International Journal of Ethics, vol. 41, no. 3, 1931, pp. 329–342. JSTOR, www.jstor.org/stable/2377858. (Last accessed- 08/04/20)
3. S.13B, Hindu Marriage Act, 1955(As amended in 1976).
4. Supra note 2 at 3.
5. Id.
6. Id.
7. Id.
8. Id.
9. Shastri Vamadev, Manu Smriti and its relevance, Hindu Human Rights(June 16, 2015) https://www.hinduhumanrights.info/manu-smriti-and-its-relevance/#!prettyPhoto (Last accessed- 08/04/20)
10. Supra note 10 at 4.
11. Id.
12. Kusum, Family Law Lectures (2nd, Lexis Nexi Butterworths wadhwa, Nagpur 2007) 181-207
13. S.10A, The Indian Divorce Act, 1869.
14. Supra note 3 at 3.
15. Supra note 12 at 5.
16. S.32B Indian Parsi Marriage and Divorce Act, 1936(as amended in 1988)
17. S.28, Special Marriage Act, 1954.
18. Supra note 3 at 3.
19. S.23(1)(bb), Hindu Marriage Act, 1955.
20. Amardeep Singh v. Harveen Kaur, (2017) 7 SCC 746
21. Nitin Sudhakar Zaparade v. Nil, AIR 2017 Bom 270
22. Om Prakash v. Nalini, AIR 1986 AP 167
23. Dinesh Kumar Shukla v. Neeta, AIR 2005 MP 106
24. Abhay Chauhan v. Rachna Singh, AIR 2006 Del 18
25. Jayashree v. Ramesh, AIR 1984 Bom 302
26. Nachhattar Singh v. Harcharan Kaur, AIR 1986 P&H 27
27. Sureshta Devi v. Om Prakash, AIR 1992 SC 1904
28. Rachna Jain v. Neeraj Jain, 2005(2) HLR 725
29. Sweety EM v. Sunil Kumar, AIR 2008 Kant 1
30. Priya v. Sanjay Gaba, (2004) 1 HLR 640
31. Urvashi Sibal v. Govt of NCT, AIR 2010 Del 157 at 159
32. Suman v. Surendra Kumar, AIR 2003 Raj 155
33. Smruti Paharia v. Sanjay Pahariya, 2009(7) SCLAE 331
34. Sadhna Gupta v. State of Jharkhand, AIR 2007 Jhar 96(Jhar-DB)
35. Hari Kumar v. Sudha, AIR 2013 Ker 22
36. Vlosky, Denese Ashbaugh, and Pamela A. Monroe. The Effective Dates of No-Fault Divorce Laws in the 50 States. Family Relations, vol. 51, no. 4, 2002, pp. 317–324. JSTOR, www.jstor.org/stable/3700329. (Last accessed 09/04/20.)
37. Blame game to end, Ministry of Justice(Jan 7, 2020), https://www.gov.uk/government/news/divorce-blame-game-to-end (Last accessed 09/04/20.)
38. No Fault Divorce, Family Court of Australia(May 3, 2016), http://www.familycourt.gov.au/wps/wcm/connect/fcoaweb/family-law-matters/family-law-in-australia/no-fault-divorce/ (Last accessed 09/04/20.)
39. French Divorce Law, EUROJURIS(Feb 7, 2004), https://www.eurojuris.net/en/node/41634 (Last accessed 09/04/20.)
40. Kingsley Napley, Divorce in France or in England - who plays the blame game?, Lexology Family Law blog(July 15, 2016), https://www.lexology.com/library/detail.aspx?g=eab9dcf5-7624-42de-9da3-d43fe5a378ca (Last accessed 09/04/20.)
41. Divorce-Germany, European Ejustice(Oct 31, 2019), https://e-justice.europa.eu/content_divorce-45-de-maximizeMS_EJN-en.do?member=1 (Last accessed 09/04/20.)