Divorce by mutual consent can be obtained by Husband and Wife in terms of Section 13 B of the Hindu Marriage Act, 1955. The provisions of the said Section require that the husband and wife should be living separately for a period of more than 1 year and they are not able to live together any further.
“Living Separately” has been now defined by the Supreme Court as “not living as husband and wife and not performing marital obligation”, even if the husband and wife are living under the same roof.
A joint petition has to be filed in this regard and after the filing of the same, the Court grants a minimum period of six months (and maximum 18 months) for the parties to come again and make a statement confirming the said consent. It is only after this second consent having been given by both the parties after six months of the filing of the petition for mutual consent, that a decree for divorce is passed by the Court. If during this period of six months after the filing of the petition, any of the parties withdraws the consent, the divorce cannot be granted. Further, apart from the same, before passing a decree of divorce, the court has also to be satisfied that the consent has not been obtained by force, fraud or undue influence.
With regard to re-marriage after divorce, Section 15 of the Hindu Marriage Act, 1955, provides that after a decree of divorce has been granted, in case there is no right of appeal against the decree or if there is a right, the time has expired without an appeal having been presented or if the appeal filed has been dismissed, it shall be lawful for either party to marry again. The period of appeal as provided under Section 28 of the Hindu Marriage Act is 30 days from the date of the decree or order.
ADVOCATE MAGESH 