1

MUTUAL CONSENT THEORY OF

DIVORCE

Submitted To: Assistant Professor Jai Mala

Submitted By: Uday Singh Cheema
Roll No.- 105/16
Section B (Semester- III)
Email-Id : udaysinghcheema@gmail.com
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Acknowledgment

I would like to express my special thanks of gratitude to my teacher Assistant

Professor Jai Mala ma’am who gave me the opportunity to do this project on the
topic ‘Mutual consent divorce theory’ which helped me in doing a lot of research
and I came to know about so many new things I am really thankful to them.
Secondly I would also like to thank my parents and friends who helped me a lot in
finishing this project within the limited time.
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Contents

Acknowledgment...............................................2
Table of Contents...............................................3
Introduction........................................................4
Different types of divorce..................................6
Mutual Consent Divorce Meaning.....................8
History.............................................................10
Current status under Indian Law......................12
Conclusion.......................................................18
Webliography...................................................19
Bibliography....................................................20
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DIFFERENT THEORIES OF DIVORCE

Introduction
There are various theories of divorce such as fault theory, on the basis of which most of
the grounds of judicial separation and divorce are formulated in section 13(1) of the Hindu
Marriage Amendment Act, 1976. There are also modern theories of divorce such as
Mutual Consent on the basis of which a new ground of divorce; divorce by mutual consent
has been incorporated. Yet there is one more theory called breakdown theory which is
reflected in some grounds such as failure to resume cohabitation within one year getting
the degree of restitution of conjugal rights and failure to resume cohabitation within one
year after getting the degree of judicial separation. These two grounds are stated in section
13(1) (a) and section 13(1) (b) of the Marriage Law Amendment Act, 1976.
In early Roman law marriage and divorce were essentially private acts of parties.
Whenever two persons wanted to marry they could do so, and whenever they wanted to
put their marriage asunder they were equally free to do so. No formalities or intervention
of an agency was necessary for either. In England before 1857, a marriage could be
dissolved only by an Act of Parliament. After a considerable pressure, divorce was
recognised under the Matrimonial Causes Act, 1857, but only on one ground i.e. adultery.1
This continues to be position in India in respect of the Christian marriage. Later on
insanity2 was added as a ground of divorce.
However, marriage is also regarded as a social institution and not merely a
transaction between two individuals, and therefore, it was argued that there was a social
interest in prevention and protection of the institution of marriage was hedged with legal
protection. The inevitable consequence of this philosophy was that marriage came to be

1 The Matrimonial Causes Act of 1857, 1923, 1937.

2 Mental disorder has been defined as mental illness, arrested or incomplete development of mind,
psychopathic disorder or any other disorder or disability of mind and includes schizophrenia; The expression
―psychopathic disorder‖ means a persistent disorder or disability of mind (whether or not including sub
normality or intelligence) which results in abnormally aggressive or seriously ‗irresponsible conduct on the
part of the defendant, and whether or not it requires or is susceptible to medical treatment. Under the Hindu
Law, Partysi Law and the Special Marriage Act, the language is identical.
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regarded as a special contract which cannot be put to an end like an ordinary contract. A
marriage can be dissolved only if one of the spouses is found guilty of such an act and
conducts which undermined the very foundation of marriage. This led to the emergence of
the offence or guilt theory of divorce. Marriage as an eternal union was not altogether
immune to rejection. Divorce or tyaga was not alien to Indian society; it was devoid of
any formal recognition as a tool of self-emancipation by the marriage partners. During the
pre-Vedic era, despite separation of marriage partners, the marriage was not null and void.
Women had never used their rights to disown men. However, two ancient smriti writers‘
Narada and Parasara laid down few grounds on which women could remarry. Impotency,
she was allowed to take second husband if the first one was missing or dead, or had taken
to asceticism, or degraded in caste. However, earlier there was no systematic code to
regulate divorce in specific.
The Hindu Marriage Act, 1955 as amended by the Marriage Laws (Amendment)
Act, 1976 lays down nine grounds, based on guilt theory of divorce; adultery; cruelty;
desertion; conversion to a non-Hindu religion; incurable insanity or mental disorder;
virulent and incurable leprosy; venereal disease in communicable form; taking to sanyasa
(i.e. renunciation of world by entering into a holy order) and presumption of death; and
3
four additional grounds on which wife alone can sue for divorce .
The Special Marriage Act, 1954 as amended by the Marriage Laws (Amendment)
Act, 1976 recognizes eight grounds based on guilt on which either party may seek divorce
and two additional grounds on which wife alone may seek divorce, viz, rape, sodomy or
bestiality of the husband. The eight grounds are: adultery; desertion for at least three
years; respondent undergoing a sentence of imprisonment for seven years or more for an
offence under the Indian Penal Code, 1860; cruelty; venereal disease in a communicable
form, leprosy (only if the disease was not contracted by the respondent form the

3 Section 13: when carefully analyzed shows that there are in all fifteen grounds for divorce. If we
classify these grounds they fall into the following three divisions:
(1) Nine grounds based on ‗fault liability theory‘ of divorce. These grounds are laid down in sub-
section (1) and only the party aggrieved may avail of them.
(2) Two grounds based on ‗breakdown theory‘ of divorce which are contained in sub-section (1-A).
They may be availed of by any party to the marriage who is aggrieved or who is guilty.
(3) Four grounds which are special and which can be availed of by a wife only. These are shown in
sub-section (2).
Grounds shown above in (1) and (2) are available in every case of marriage whenever solemnized.
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petitioner); incurable insanity or continuous or intermittent mental disorder of such a kind

and to such an extent that the petitioner cannot reasonably be expected to live with the
respondent, and presumption of death (respondent not been heard of as alive for a period
of seven years or more). Following is the consent theoryof divorce:
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Consent Theory of Divorce

According to this theory, if the husband and wife agree to part for good, they
should be permitted to get their marriage dissolved. It is they who have to live with their
marriage. If for any reason they cannot do so they must not be compelled. Compulsive
cohabitation may give birth to matrimonial delinquencies which give rise to grounds for
divorce. Why should the law refuse a person a thing which may be given to him on his
degeneration when he asks for it before such degeneration? Granting divorce before the
matrimonial life is spoiled by the delinquency or degeneration of one or both of the
spouses is a positive goodness for both, for the parties to marriage and for society. Besides
saving the parties from moral degradation, this procedure for granting divorce has an
additional advantage that the parties are not forced to wash their dirty linen in public.
They need not level allegations and counter-allegations against each other and try to
outwit each other for proving that the other party is a ―sinner‘. It is feared that the grant
of divorce by mutual consent will enable a party to obtain divorce by wresting the consent
of the other unwilling party by a malpractice, say; coercion or fraud etc. there is no valid
reason for this fear.
Consent essentially means free consent. Where the consent of a party is obtained
by a malpractice, the affected party can ever refuse so in the court and the ground for
divorce will automatically vanish. It is also argued against this theory that this is in a way
divorce by collusion.

32
The Hindu Marriage (Amendment) Act, 1964 (44 of 1964) (w.e.f. 20-12-1964).
33
The Hindu Marriage (Amendment) Act, 1976 (68 of 1976) (w.e.f. 27-5-1976).
Law commission of India, 71st report, 1978.
34
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This objection is based on a misunderstanding of the difference between consent and

collusion. Every collusion is, no doubt, by consent between the parties but every consent
35
between them does not mean collusion.
Divorce by mutual consent mean that the case is not like usual ones in which one
party petition against the other for divorce and the other party resist the same. It means
that both the party makes a joint petition to the court for divorce between them. There may
be a genuine desire on the part of both to get rid of each other. When a party to marriage
wants divorce, it is not necessary in the nature of things that the other party must oppose
it. The other party may be equally or rather more willing for it. They may be sensible
36
enough to part for good amicably.
Collusion on the other hand means an agreement or understanding between the
parties to make the court believe in the existence or truth of the circumstances which
parties know to be none existent or falls and the existence or truth of which is necessary
37
for the grant of the relief claimed in the petition. In a collusive proceeding, the claim put
forward is false, the contest over it is unreal and the decree prayed therein is a mere mask
having the similitude of a judicial determination. It is acquired by the parties with the

35
Syal v. Syal, AIR 1968 P&H 439. By keeping the wife ignorant of the proceedings under sec.9 the
husband obtained a decree for restitution of conjugal rights. She was again kept in dark about the execution
proceedings. Held, the husband was in the wrong and divorce was denied. Ahluwalia v. Ahluwalia, AIR
1962 Punj 432: The husband after getting the decree for restitution in his favour, petitioned under section 12
(1) (c) for the annulment of marriage. His petition was dismissed. Then he petitioned for divorce on the basis that
no restitution has taken place for the statutory period after the decree to that effect. Held, that it was impossible for
the wife to comply with decree of restitution of conjugal rights as along as the husband was proceeding with the
petition for the nullity of marriage. He was, therefore, not given the decree of divorce.
36
Dharmendra Kumar v. Usha Kumari, AIR 1977 SC 2218: This case presents an illustration of the
application of the rule of harmonious construction by the Supreme Court. In this case, the wife was granted
restitution of conjugal rights under section 9 of the Act. After two years she petitioned for divorce under
section 13 (1-A) (ii) on the ground that there has been no restitution of conjugal rights after the passing of a
decree to that effect. The husband stated that the wife herself refused to receive or reply to the letters written
by him and did not respond to his other efforts to make her agree to live with him. If divorce is granted to
her she would get the advantage of her own wrong which is not permitted under Section 23 (1) (a).
37
Tirukappa v. Kamalamma, AIR 1966 Mys 1..ILR 1965 Mys 211.. (1965) 1 Mys LJ 329.
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38
object of confounding third parties. Collusive proceeding is a mere sham. Thus,
collusion is a strong word. It is a deceitful agreement for the purpose of defrauding others
39
and the court.
If the husband and wife present a petition for divorce by mutual consent with the
actual intent and purpose of getting their marriage dissolved, it does not amount to divorce
by collusion. It will be a collusive divorce if they ask for it without meaning to divorce
each other in fact. Hence divorce by a real consent of the husband and wife is not
synonymous with divorce by collusion. The chances of collusion in the case of divorce by
consent are neither more nor less than in that of litigious divorces.
It is also objected that this procedure will lead to hasty divorces. The objections
are groundless. This theory does not propound that a husband and wife have the right to
go hand in hand to the court and inform it that they wish to be divorced and the court
would there and then write down a decree for their divorce. This theory only facilitates the
party who are unable to pull on well to get divorce without litigation. But it is necessary to
establish some concrete proof of a rift between them and their desire to be untied. This
checks hasty divorces by mutual consent. Whenever divorce by mutual consent is
permitted, it is provided as a pre-condition for submitting the petition to the court that the
parties to marriage must have lived separately for a considerable period, say, a year or
two. Moreover, the court does not start hearing at an early date and instead the parties are
required to come again together after a considerable time to move the court for taking a
decision on their joint petition. If they do not do so the court will not summon them. It will
be deemed that they have changed their mind. If only one of them comes, then also no
decision will be taken because the absence of the other party negates the mutuality of their
consent. This proves that the divorces by mutual consent is not so simple and short a
matter. It has its own checks and time – consuming preconditions.
Now there is a welcome provision in the introduction of divorce by mutual consent
40
under the Hindu Marriage Act. Under the Special Marriage Act such a provision already

38 Nagubai Ammal v. B. Shamarao, AIR 1956 SC 593; Varadammal v. Ambalal J. Vyas, (1971) 1 Mad LJ
65: AIR 1971 Mad 371; Subhash Chandra v. Ganga Prasad, AIR 1967 SC 878: (1967) 1 SCR 331: (1967) 2
SCJ 159.
39 Indo Allied Industries Ltd. V. Punjab National Bank Ltd., AIR 1970 All 108. See Jowitt‘s Dictionary of
English Law, 1977, 2nd ed., Vol. 1st , p.373.
40 Section 13B, Hindu Marriage Act, 1955.
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41
exists. The protagonists of the consent theory have maintained that mutual fidelity in
marriage can prevail only when parties have the same freedom of divorce as they have of
marriage. Just as an individual may err in entering into any other transaction, he may as
well err in marriage. If two parties realize that this is so, then they should be permitted to
put the marriage to an end by mutual consent. But the drawbacks of consent theory are
42
that either it makes divorce too easy or too difficult. To prevent hasty divorces by
43
mutual consent the law in various countries provides several safeguards. But nothing
can be done, if one of the parties withholds his consent, innocently or wickedly or
maliciously. Under the Special Marriage Act it was laid down that a couple may present a
petition for divorce by mutual consent on the ground that they have been living separately
for a period of one year or more, that they have not been able to live together and that they
44
have mutually agreed to divorce. On doing so, they were required to wait for one year.
If, after the expiry of the period of one year, if they move a motion that they wanted their
marriage to be dissolved, then the court might pass a decree of divorce. Now this latter
period of one year has been reduced to six months. A provision of divorce by mutual
45
consent in this modified form has been introduced into the Hindu Marriage Act. It is
submitted that the latter period of six months desirable as it gives parties an opportunity
for rethinking and reconsidering. But the initial period of separation of one year is not
justified. In our Indian situation sometimes, it may not be possible to live separately—
even though parties are living together very miserably.
If a married couple realizes that they are finding it difficult to pull on together;
they have tried hard to make the marriage a success, but all their efforts have filed. It is
not that they are wicked people or bad persons. They are average human beings who have,
somehow or the other, not been able to pull on together. In such a case, only alternative
for them is to get out of the matrimony. But they cannot do so. The fault theory requires

41 Section 28, Special Marriage Act, 1954.

42 See Paras Diwan, ―Modern Hindu Law‖ (3rd ed.), p. 70-72; also if and when the irretrievable
breakdown is also included among the grounds for divorce as recommended by the Law Commission, the
Hindu Law of divorce would be one of the reasonably most liberal laws of divorce in the world.
43 See Section 23, the Hindu Marriage Act, 1955.
44 Section 28, Special Marriage Act, 1954.
45 Section 13B, Hindu Marriage Act, 1955.
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46
that one of them (and only one of them) should be guilty of some matrimonial offence ,
then and then only the marriage can be dissolved. Then it was thought that a divorce by
mutual consent was the answer to this problem. It was asserted that freedom of marriage
47
implies freedom of divorce.
Thus as against the guilt theory, there has been advocated the theory of free
divorce or the consent theory of divorce. The protagonists of this theory hold the view that
parries to marriage are as free to dissolve a marriage as they are to enter it. If marriage is a
contract based on the free volition of parties, the parties should have equal freedom to
dissolve it. Just as an individual may err in entering into some other transaction, so also he
or she may err in entering into a marriage. The argument may be summed up thus: it may
construe that two parties who have entered into a marriage with free consent, later on,
realize that they made a mistake, and for one reason or another, are finding it difficult to
pull on together smoothly and to live together harmoniously. It is not because they are
wicked, bad or malicious people. They are just ordinary average human beings, but it has
just happened that their marriage has turned out to be a bad bargain, and they find it
impossible to continue to live together. Should they have no right to correct their error, to
cast off a burden which has become onerous, intolerable and which is sapping the vital
fluid of life and eating into its very vitals? It is not merely their physical life, it is also their
entire family life, including moral life, which is affected. If from this situation they have
no way out, they are likely to go astray, may be, willy-nilly, one is forced to commit a
matrimonial offence, may be one, out of sheer frustration, murders the other. Such an
unhappy family is a breeding ground for delinquent children. In short, continuance of such
a marriage is neither in the individual nor in the social interest. Thus, it is argued, that
freedom of marriage implies freedom of divorce, then and then only can mutual fidelity
continue, can real monogamy exist.
It is stated that the very basis of marriage is mutual fidelity, and if for any reason
the parties feel that mutual fidelity cannot continue, they should have freedom to dissolve
the marriage, as only by dissolution, fidelity can be preserved. Divorce by mutual consent

46 Only Matrimonial Offences like adultery, bigamy, cruelty, rape etc. and not criminal offence which are
punishable under Indian Penal Code, 1860.
47 Section 13B, the Hindu Marriage Act, 1955; section 28, the Special Marriage Act, 1954; section 10 A,
the Divorce Act, 1869; section 32 B, the Parsi Marriage and Divorce Act, 1936.
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means that the law recognizes the situation that has existed for some time and in effect
says to the unhappy couple.
The supporters of this theory hold that the freedom of divorce will bring about
more happy marriages, and reduce the number of unhappy one. It will help both the
husband and the wife to live in harmony and consolidate the unity of the family, so that
they may fully engage in their career. Since there is freedom of divorce, both man and
woman are forced to take a very serious and sincere attitude towards marriage.
Under Muslim law also, divorce by mutual consent is recognized in two forms (i)
Khul, and (ii) Mubbaraat. The word Khul literally means ―to put off‖. In law it means
48
laying down by a husband of his right and authority over his wife for an exchange.
In Khul the desire for divorce emanates from the wife, while in mubbaraat
aversion is mutual; both parties desire dissolution of marriage. Mubbaraat denotes the act
of freeing one another mutually, and the proposal for divorce may emanate from either
spouse. But even in mubbaraat wife has to give up her dower or part of it.
The Soviet Union introduced this theory in the family law. In the People‘s
Republic of China, in most of Eastern-European countries, Belgium, Norway, Sweden,
Japan, Portugal and in some Latin American States divorce by mutual consent is
recognized in one form or the other. At home, the Special Marriage Act, 1954, and the
Hindu Marriage Act, 1955 (after the amendment of 1976), the Divorce Act, 1869, the
49
Parsi Marriage and Divorce Act, 1936 recognize divorce by mutual consent.
The criticism of the consent theory is two-fold: (i) it makes divorce very easy, and
(ii) it makes divorce very difficult. It has been said that divorce by mutual consent offers a
great temptation to hasty and ill-considered divorces. More often than not, parties
unnecessarily magnify their differences, discomforts and other difficulties, which are
nothing but problems of mutual adjustments, and rush to divorce court leading to
irrevocable consequences to the whole family. This criticism has been met by the law of
many countries which recognize divorce by mutual consent by providing several
safeguards.

48 Baillie, Digest of Mohammden Law, 38; Hedaya, 112.

49 Section 13B, the Hindu Marriage Act, 1955; section 28, the Special Marriage Act, 1954; section 10 A,
the Divorce Act, 1869; section 32 B, the Parsi Marriage and Divorce Act, 1936.
 13

In the modern English law, the Matrimonial Causes Act, 1973, the consent theory
has been accorded recognition by laying down that if the parties have lived apart for a
continuous period of at least two years, immediately preceding the presentation of the
petition, divorce may be granted by the mutual consent of the parties.
50 51
Under the Special Marriage Act, 1954 and the Hindu Marriage Act , 1955 no
petition for divorce can be ordinarily presented before a period of one year has elapsed
since the solemnization of marriage. A similar provision has been made in Parsi Marriage
52
and Divorce Act, 1936 by the amending Act of 1988.

50 Section 29 of the Special Marriage Act, 1954: Restriction on petitions for divorce during first one years
after marriage.-
(1) No petition for divorce shall be presented to the district court [ unless at the date of the presentation of
the petition one year has passed] since the date of entering the certificate of marriage in the Marriage
Certificate Book: Provided that the district court may, upon application being made to it, allow a petition to
be presented [ before one year has passed] on the ground that the case is one of exceptional hardship
suffered by the petitioner or of exceptional depravity on the part of the respondent, but if it appears to the
district court at the hearing of the petition that the petitioner obtained leave to present the petition by any
misrepresentation or concealment of the nature of the case the district court may, if it pronounces a decree,
do so subject to the condition that the decree shall not have effect until after the [ expiry of one year] from
the date of the marriage or may dismiss the petition, without prejudice to any petition, which may be brought
after the [ expiration of the said one year] upon the same, or substantially the same, facts as those proved in
support of the petition so dismissed.
(2) In disposing of any application under this section for leave to present a petition for divorce before the
[expiration of one year] from the date of the marriage, the district court shall have regard to the interests of
any children of the marriage, and to the question whether there is a reasonable probability of a reconciliation
between the parties before the expiration of the [said one year].
51
Section 14 of the Hindu Marriage Act, 1955: No petition for divorce to be presented within one year of
marriage.
(1) Notwithstanding anything contained in this Act, it shall not be competent for any court to entertain any
petition for dissolution of a marriage by a decree of divorce, [ unless at the date of the presentation of the
petition one year has elapsed] since the date of the marriage: Provided that the court may, upon application
made to it in accordance with such rules as may be made by the High Court in. that behalf, allow a petition
to be presented 1[ before one year has elapsed] since the date of the marriage on the ground that the case is
one of exceptional hardship to the petitioner or of exceptional depravity on the part of the respondent, but if
it appears to the court at the hearing of the petition that the petitioner obtained leave to present the petition
by any misrepresentation or concealment of the nature of the case, the court may, if it pronounces a decree,
do so subject to the condition that the decree shall not have effect until after the [ expiry of one year] from
the date of the marriage or may dismiss the petition without prejudice to any petition which may be brought
after the [ expiration of the said one year] upon the same or substantially the same facts as those alleged in
support of the petition so dismissed.
(2) In disposing of any application under this section for leave to present a petition for divorce before the
[expiration of one year] from the date of the marriage, the court shall have regard to the interests of any
children of the marriage and to the question whether there is a reasonable probability of a reconciliation
between the parties before the expiration of the [said one year].
52
Section 32B in the Parsi Marriage and Divorce Act, 1936: Divorce by mutual consent.
(1) Subject to the provisions of this Act, a suit for divorce may be filed by both the parties to a marriage
together, whether such marriage was solemnized before or after the commencement of the Parsi Marriage
 14

The other criticism of the theory is that it makes divorce very difficult. Since
divorce by mutual consent requires the consent of both the parties and if one of the parries
withholds his consent, divorce can never be obtained. It may happen that one of the parties
to marriage may not give his or her consent for divorce on account of a belief in the
indissolubility of marriage, or on account of sheer malice, bigotry or avarice, then divorce
can never be obtained.
Thus, it became necessary to find an alternative to the consent theory also. But in
countries like England where it was found difficult even to replace fault theory with
consent theory, much less to introduce irretrievable breakdown of marriage theory, two
modes were found to mitigate its rigor. Firstly, some countries went on enlarging the fault
grounds of divorce so much so that ―incompatibility of temperament‖ or ―profound and
lasting disruption‖ was made grounds of divorce.
The second course adopted was to give a very wide interpretation to some fault
grounds. Cruelty was found to be most handy ground which could be moulded into any
shape. Some States of the United States of America went to the extent of saying that if
husband snored during the night thus disturbing the sleep of the wife, it amounted to
cruelty. Gradually, cruelty was given such a wide interpretation that it virtually amounted
53
to recognition of breakdown theory of divorce.
54
In Gollins v. Gollins , the wife soon after the marriage found out that her husband
was heavily in debt at the time of the marriage and his farm was also heavily mortgaged. The
husband was not in a position to provide maintenance for her. It was she who had to lend
money to her husband from time to time to pay off pressing debts. The wife ran a guest house
for elderly people: husband did not contribute anything. In short, husband did nothing to help
her; he could have obtained paid employment but did not care to get it.

and Divorce (Amendment) Act, 1988 , on the ground that they have been living separately for a period of
one year or more, that they have not been able to live together and that they have mutually agreed that the
marriage should be dissolved: Provided that no suit under this sub- section shall be filed unless at the date of
the filing of the suit one year has lapsed since the date of the marriage.
(2) The Court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit,
that a marriage has been solemnized under this Act and the averments in the plaint are true and that the
consent of either party to the suit was not obtained by force or fraud, pass a decree declaring the marriage to
be dissolved with effect from the date of the decree.]
53
V. Raveendra Reddy, ―Need for Irretrievable Breakdown of Marriage as a ground for Divorce‖ Indian
Bar Review 1991 (26) at 114.
54
(1963) 2 All ER 966; 1964 AC 644; Russel v. Russel, 1897 AC 305; Dastane v. Dastane, AIR 1970 Bom
312; Shobha Rani v. Madhukar Reddi (1988) 1 SCC 105, 108: 1988 SCC (Cri) 60: AIR 1988 SC 128.
 15

The husband however, did nothing at any time to cause any physical harm to the wife.
Under these circumstances, the wife brought an action for divorce on the averment that
she could not stand the strain of his debts and that her husband had wilfully neglected to
provide reasonable maintenance to her and children. On these facts the husband was held
guilty of persistent cruelty.
55
The question again came in Williams v. Williams , where the wife filed an action
for divorce on the ground that the husband persistently accused her of adultery as a
consequence of which her health had been injured. The husband was a mental patient and
therefore insanity was taken as a defense. Rejecting the husband‘s plea, the House of
Lords allowed the wife‘s petition.
Thus, the scope of the cruelty-one of the fault grounds-has been so much widened
by judicial interpretation as to include virtually the breakdown principle. The Matrimonial
Causes Act, 1963 removed ‗collusion‘ from absolute bars and placed it among the
discretionary bars. This resulted in the acceptance of several collusive agreements which
virtually implied acceptance of divorce by mutual consent of the parties.
The provision for dissolving marriage through mutual divorce in India is included
in Section 13B of the Hindu Marriage Act by the Marriage Laws (Amendment) Act, 1976.
Any marriage solemnized before and after the Marriage Laws (Amendment) Act, 1976 is
entitled to this provision.
Though several laws have been passed with the progress of time, the divorce
procedure in India is still complex and one will have to contest the divorce for several
months. The Indian judicial law believes that the extended time span might work out well
for the couple to reconsider their marriage and hence, a marriage will be saved from being
dissolved forever.
A marriage may be said to have broken down when the purpose of the marriage tie
is defeated or when the objects of the matrimony cannot be fulfilled. Broadly speaking,
the main objects of the marriage are twofold, viz, the maintenance of stable sexual
relationship and the protection and care of the children of the marriage. When the life of
the spouses reach such a stage that each has his or her own way, when there are constant
bickering and nagging, when there is no mutual affection and trust, it may be presumed

55 (1963) 2 All ER 994.

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56
that the marriage has failed. Under such condition neither sexual fidelity is possible nor
are the interests of the children secured. In many countries the fact of separation is
considered to be an indication of the breakdown. Some countries provide certain
guidelines apart from a separation period, as indicative of the marital breakdown. There
can, however, be no absolute rule and every sick marriage may have its own peculiar
reasons for being so. The entire history of the marriage has to be studied. It is only when
there is not an iota of hope that the parties will reconcile that the marriage can be
considered as irretrievably broken down.
It cannot be denied that a system which permits divorce on the fault of the other
party has a number of flaws. Under the fault system of divorce, parties whose marriage
has obviously broken down are impaired to live together in law. In the absence of a
technical fault viz, the fault grounds enumerated in the divorce section, no divorce can be
granted. Similarly, when both parties are at fault – the ―clean hands theory‖ equity makes
matters difficult for the spouses.
Besides, since the proof of matrimonial fault is a condition precedent for the grant
of a divorce in a fault oriented system, parties are at a virtual tug of war in the court with
57
accusations and counter accusations against each other.
 17

Webliography

1. www.legalserviceindia.com/helpline/mutual_consent_divor
ce.htm
2. https://blogs.timesofindia.indiatimes.com › Blogs › Edit
Page Blogs
3. https://www.vakilno1.com/.../divorce-mutual-consent-
india-step-step-procedure.html
4. info.legalzoom.com › Divorce
 18

Bibliography

1.Dr. Paras Diwan, Modern Hindu Law, 20th Ed., 2009,

Allahabad Law Agency.

2. Dr. B.K. Sharma, Hindu Law, 3rd Ed. 2011, Central Law
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3.Lexis Nexis, Butterworths Aqil Ahmed, Mohammedan Law,

23rd Ed, 2009, Central Law Agency Dr. Paras Diwan