Divorce by mutual consent can be granted only if both parties jointly seek the same: Delhi High Court

The Delhi High Court recently held that divorce by mutual consent between husband and wife can only be granted when both parties jointly and unequivocally desire such separation.

The family court concerned cannot assume consent if the two sides separately and independently seek dissolution of marriage, the Court said.

A Division Bench of Justices Anil Kshetarpal and Harish Vaidyanathan Shankar held that the foundational requirement of Section 13B of Hindu Marriage Act (divorce by mutual consent) is a prefatory, pre-existing, mutual agreement, meaning a meeting of minds, reached before the institution of divorce proceedings.

In the absence of that consensus at the inception, parallel petitions filed later cannot be retroactively re-cast as a petition for divorce by mutual consent, the Court underscored. 

“It is, therefore, implicit that the very foundation of Section 13B of the HMA rests upon the mutuality of consent of the spouses to the act of separation. Such consent must be express and unequivocal and cannot be inferred by implication. The consent envisaged under the provision is one emanating from the volition and free will of both parties, and cannot be substituted by the subjective satisfaction of the Court upon a mere assessment of the statutory ingredients,” the Court held. 

It said that a court, by merely looking at the separate prayers made by the parties, cannot presume such consensus or foist upon them a decree of divorce on terms and conditions which they have neither envisaged nor agreed to. 

“To do so would amount to the Court imposing upon the parties a separation on conditions that do not emanate from their mutual consent. Such approach is clearly contrary to the express language of Section 13B, and thus, legally unsustainable,” the judgment held.

The Court rendered these findings while setting aside a July 2024 order of the Patiala House Courts that dissolved a marriage under Section 13B despite the fact that both husband and wife had filed separate, adversarial petitions under Section 13 (1) of the Act alleging cruelty and adultery. 

The family court had reasoned that since both spouses wanted a divorce, their individual petitions could be treated as implicit mutual consent.

In a judgment passed on September 24, the High Court disagreed with the family court's reasoning and approach, calling it a “grave and manifest illegality.” 

It emphasised that Section 13B was not merely a matter of procedural form but embodied substantive statutory safeguards.

The Court pointed out that the family court had overlooked the statutory cooling-off period and the requirement of a second motion under Section 13B which ensures that parties reaffirm their decision after reflection. 

“We cannot accept the interpretation placed upon Sections 9 and 10 of the Family Courts Act [reconciliation, flexibility of procedure] by the learned Family Court for two distinct reasons. First, the meeting of minds that Section 13B of the HMA contemplates is not a procedural formality which the Court may dispense with. Second, Section 10 of the FC Act deals with procedure, while it permits the learned Family Court to adopt procedures suited to effecting settlements, it does not empower the Court to alter, dilute or substitute the substantive requirements of other enactments, including the HMA,” the High Court said. 

It noted that in dissolving the marriage without the parties filing for it, the family court assumed the powers which only the Supreme Court has under Article 142 of the Indian Constitution. 

“The manner in which the learned family court proceeded to grant a decree of divorce in the present case runs contrary to the statutory framework and judicial discipline,” the High Court said. 

Therefore, it set aside the order and restored the two separate petitions filed by the couple before the family court for fresh adjudication. 

Advocate Nandini Sen and Basab Sengupta represented the wife in the case. 

The husband was represented by advocates Gauri Gupta and Rishabh Kumar Jain. 

[Read Judgment]