Free Consent in Mutual Divorce Cases: A Detailed Look at Section 13B of the Hindu Marriage Act

Shivendra Pratap Singh

Advocate

High Court Lucknow

Article

Reading Time:

Deciding to end a marriage is seldom easy. When a couple agrees on divorce mutually, it often helps smooth the process, allowing for a dignified and respectful resolution. In India, such mutual divorces are governed by Section 13B of the Hindu Marriage Act. In this blog post, we delve into the critical concept of “Free Consent” under this Act, examining its significance, implications, and challenges.

Understanding Section 13B

Section 13B of the Hindu Marriage Act, 1955 introduces the provision for divorce by mutual consent. It stipulates that a petition for dissolution of marriage may be presented by both parties, given they’ve been living separately for a year or more, have not been able to live together, and have mutually agreed that the marriage should be dissolved.

Free Consent: The Foundation Stone

A fundamental requirement for a mutual divorce under Section 13B is the free and voluntary consent of both parties. It means that both the husband and the wife have agreed to the divorce without any undue influence, coercion, fraud, or misrepresentation.

Why is Free Consent Critical?

Free Consent is essential because it upholds the principles of equity, fairness, and individual autonomy. It ensures that both parties are making an informed decision without being subjected to any form of duress. The objective is to protect the rights of the parties involved and to confirm that the decision for divorce is a result of their own volition.

Challenges and Considerations

While the principle of free consent seems straightforward, its practical application may present challenges:

  1. Coercion or Undue Influence: It’s not unheard of for one spouse to pressure the other into agreeing to a mutual divorce. Such pressure might be exerted subtly, making it hard to ascertain if the consent was truly free.
  2. Misinformation or Lack of Awareness: Sometimes, a spouse may consent to divorce without fully understanding the legal implications, such as their entitlements regarding alimony, child custody, or property division. Hence, ‘informed’ consent is as crucial as ‘free’ consent.
  3. Change of Mind: Given the waiting period of six months between the first and the final motion, it’s possible that one party may change their mind, throwing the entire process into disarray.

Judicial Approach

Courts in India have been vigilant about ensuring free consent in mutual divorce cases. If the court has any reason to believe that the consent has not been obtained freely, it can deny the divorce. For example, in the case of “Smt. Sureshta Devi vs Om Prakash,” the Supreme Court held that mutual consent should continue till the divorce decree is passed, ensuring that a party can withdraw consent at any stage before the decree.

Conclusion

Free Consent is undeniably a cornerstone of the provision for mutual divorce under Section 13B of the Hindu Marriage Act. It preserves the dignity and autonomy of individuals, even as they navigate the painful process of ending a marriage. However, its effective implementation necessitates vigilance, both from the parties involved and from the legal system, to ensure that the consent is free, informed, and enduring. In the delicate arena of marital relationships, this commitment to consent underscores a respect for individual choice, lending a touch of humanity to the rigors of law.