Can mutual divorce be granted if spouses accuse each other of cruelty? Delhi High Court answers

The bench noted that a divorce plea under cruelty allegations permits a petition by either spouse, whereas a divorce by mutual consent requires a petition to be presented by the couple together. (AI-enhanced image)

‘Divorce by mutual consent, cruelty distinct’ 

• The high court noted that the dispute did not arise from the fact that both spouses wanted the marriage dissolved, but from the manner in which the family court granted the divorce.
• It observed that the pleadings before the family court disclosed rival allegations of matrimonial fault and cruelty, not a joint request for divorce by mutual consent under Section 13B of the Hindu Marriage Act (HMA). 
• It was pointed out that Section 13 of the Act deals with fault-based divorce, where one spouse alleges a matrimonial wrong against the other, and the court is required to adjudicate upon such allegations. 
• It was further added that Section 13B, on the other hand, deals with divorce by mutual consent, where the basis of the decree is not fault, but the agreement of both parties to bring the marriage to an end. 
• The court further noted that a divorce under cruelty permits a petition by either spouse, whereas a divorce by mutual consent requires a petition to be presented by the couple together. 
• The divorce by mutual consent must come together with a common decision to dissolve the marriage, and second, that such consent must continue even at the stage when the court is called upon to pass the decree. 
• The requirement of a joint petition and a subsequent motion is meant to ensure that the consent is real, voluntary, and continues till the end, when the second motion is passed between the parties. 
• The family court’s March 2025 order cannot be sustained and is accordingly set aside. 
• The Delhi High Court directed the family court to proceed to frame issues, permit the parties to lead evidence, and decide the matter on its own merits. 

1-year marriage, family court order

It was placed on record that the marriage between the wife and the husband was solemnised in January 2023, according to Hindu rites and ceremonies. It was noted that no child was born from the wedlock. The parties allegedly started residing separately in January 2024. 

Later, the husband instituted a case before the family court seeking dissolution of marriage under Section 13(1)(ia) of the Hindu Marriage Act, 1955, on the ground of cruelty. The wife entered appearance in the said proceedings and filed her written statement. 

Along with the written statement, the wife also filed a counterclaim under Section 23A of the Hindu Marriage Act seeking dissolution of marriage on the ground that the husband had subjected her to cruelty. Subsequently, in March 2025, the family court took the written statement and counterclaim on record and, on the same date, proceeded to dissolve the marriage between the estranged couple under Section 13B (mutual consent) of the Act. 

Aggrieved by this order of the family court, the wife preferred the present appeal, contending that the family court could not have converted contested proceedings with charges of cruelty into a decree of divorce by mutual consent. 

Consent can’t be presumed 

Appearing for the wife, advocate Ankit Gupta submitted that the family court acted wholly without jurisdiction in passing a decree under Section 13B in proceedings which were admittedly instituted and contested under Section 13(1)(ia) of the Hindu Marriage Act.

It was submitted that the essential preconditions for granting divorce with mutual consent were absent. It is submitted that the family court could not have presumed consent merely because the estranged couple had, in separate pleadings, sought divorce on allegations against each other. 

It was submitted that no effort towards reconciliation was undertaken, nor were the couple afforded an opportunity to lead evidence or contest the allegations levelled against each other. 

No infirmity in family court’s order

On the contrary, the husban,d represented by advocate Annu Sharma, argued that the present appeal is devoid of merits and the said judgment does not contain any infirmity which requires appellate interference by this court.  

It was submitted that the family court has recorded that both parties were living separately since January, 2024 and that there was no subsisting matrimonial relationship between them. 

It was added that in such circumstances, where the estranged couple were seeking divorce, and there was no possibility of reconciliation, the family court was justified in bringing an end to the matrimonial dispute rather than prolonging the litigation.