Marriage & divorce: Does ‘mutual consent’ matter?

Marriage & divorce: Does ‘mutual consent’ matter?

The plea for unilateral divorce put forward by Union Power Minister Sushil Kumar Shinde’s daughter Smriti in her petition to the Supreme Court...

The plea for unilateral divorce put forward by Union Power Minister Sushil Kumar Shinde’s daughter Smriti in her petition to the Supreme Court has led to a debate in the legal fraternity on whether the condition of mutual consent for divorce under the Hindu Marriage Act should be waived if the marriage is “dead” emotionally and practically. Under the Hindu Marriage Act or the Special Marriage Act,there are no legal provisions that recognise “irretrievable breakdown” or “irreconcilable differences” as grounds for obtaining divorce and a petition under mutual consent remains the only legitimate method. In 2006,in Naveen Kohli vs Neelu Kohli,the SC recommended to the government to consider bringing an amendment in the Act to incorporate irretrievable breakdown of marriage as a ground for divorce. Here’s a look at how marriage and divorce are defined by law:

What is marriage?

Hindus (including Buddhists,Jains and Sikhs): According to the Hindu Marriage Act,1955,marriage is considered to be a sacred relationship,a divine covenant meant for procreation and continuation of family lineage.

Muslims: Called niqah,it is a social contract between a man and a woman that creates immediate rights and duties. The giving of mehr to the bride by the groom is an essential part of the contract.

Christians: The marriage,as per the Indian Marriage Act that pertains to Christians,is regarded as instituted and intended by God for the lifelong relationship between a man as husband and a woman as wife. The law requires the courts to pass orders as nearly as may be conformable to the principles and rules on which the Court for Divorce and Matrimonial Causes in England for the time being acts and gives relief.

Inter-religious marriages are governed by the Special Marriage Act,1954.

How can one obtain divorce?

Hindus: Divorce under the Hindu Marriage Act,1955,can be obtained on various grounds: a) cruelty,b) desertion for two years,c) conversion in religion,d) unsound mind,e) suffering from venereal disease and/or leprosy,f) renouncement of the world,g) not heard for seven years,h) no resumption of co-habitation for one year after the decree of judicial separation,i) no restitution of conjugal rights for one year after decree for restitution of conjugal rights,j) husband guilty of rape,sodomy or bestiality,k) if after an order of maintenance is passed under the Hindu Maintenance and Adoptions Act or the Criminal Procedure Code there has been no cohabitation for a year. By an amendment in the Act in 1976,the courts were empowered to grant divorce on the ground that the couple has been living separately for one year or more,they have mutually agreed that the marriage should be dissolved.

Muslims: Sunni practice requires no witnesses and allows a husband to end a relationship by saying talaq three times. Shia practice requires two witnesses followed by the iddah period where the couple is supposed to try to reconcile. If the couple breaks the iddah,talaq is voided. The Dissolution of Muslim Marriage Act,1939,lays down certain grounds based on which a Muslim woman can seek divorce. Some of these are a) husband’s whereabouts not known for four years,b) husband fails to provide maintenance to wife for two years,c) husband imprisoned for seven or more years,d) husband unable to meet marital obligations,e) if the girl is married before 15 and decides to end the relationship before she turns 18,f) husband indulges in acts of cruelty.

Christians: The grounds of divorce mentioned under the Indian Divorce Act are: a) adultery,b) conversion to another religion,c) unsound mind,leprosy or communicable venereal disease for two years before the filing of the divorce,d) not seen or heard alive for seven or more years,e) failure in observing the restitution of conjugal rights for two years,f) inflicting cruelty and giving rise to mental anxiety,g) wife can file a divorce based on the grounds of rape,sodomy.

What are the provisions for divorce by mutual consent?

Hindus: Under Section 13B of the Hindu Marriage Act,a husband and wife can file a mutual divorce only when they have lived apart for at least a year. The couple must jointly mention about inability to continue the marital relationship due to some unavoidable circumstances. Both the sides must voluntarily agree to dissolve the marriage. The filing of a mutual divorce by both the husband and the wife is termed as ‘the first motion’. A couple can file for a second motion after a gap of six months. This time span is provided to the couple so that they get time to reconsider their marriage. A divorce decree can be passed before the completion of the six months term if all the mandatory requirements are sufficed. If the divorce file is not withdrawn within 18 months,the court passes a divorce decree. In case one of the sides withdraws the petition,the court initiates to make an enquiry. If the concerned side disagrees to give the consent,the court holds no right to pass the judgment.


There are no such provisions in the Muslim law or the marriage law for the Christians mandating Muslims and Christians to obtain divorce from a court on the ground of mutual consent.