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Divorce procedure made tougher in India

NEW DELHI: It could now be tough for estranged partners to end their marriage by mutual consent. For, the Supreme Court on Monday said either husband or wife could withdraw consent to divorce any time before the decree is passed by the matrimonial court.

The divorce provision in Hindu law provided that once the application for dissolution of marriage was presented before the competent court, either of the applicants could withdraw the consent within 18 months.

However, a Bench comprising Justices D K Jain and H L Dattu said even if husband or wife withdrew consent after 18 months but prior to passing of the decree, the court could not grant divorce.

“It is clear that one of the parties may withdraw their consent at any time before the passing of the decree. The most important requirement for grant of divorce by mutual consent is free consent of both parties,” it said.

Justice Dattu, writing the judgment for the Bench, explained, “In other words, unless there is a complete agreement between husband and wife for dissolution of the marriage and unless the court is completely satisfied, it cannot grant decree for divorce by mutual consent. Otherwise, in our view, the expression ‘divorce by mutual consent’ would be otiose.”

Hitesh and Deepa, who were married in 1994 and had a girl child, made a joint application for divorce by mutual consent in August 2001. But Deepa withdrew her consent in March 2003 after a period of 18 months. The husband wanted the court to consider this as time-barred and grant him divorce. On the other hand, Deepa said she never wanted divorce and wanted to live with him.

After failing to convince the court about the time bar on withdrawal of consent by the wife, Hitesh told the Bench that the marriage had broken down irretrievably, both being estranged for the last 10 years.

The Bench turned down this plea too and said, “It is under extraordinary circumstances that this court is compelled to dissolve a marriage as having irretrievably broken down.”

It turned philosophical and said, “Marriages are made in heaven, or so it is said. But, we are more often than not made to wonder what happens to them by the time they descend down to earth. Though there is legal machinery in place to deal with such cases, these are perhaps the toughest for the courts to deal with.”

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5 thoughts on “Divorce procedure made tougher in India”

  1. HI,
    We got married on MArch 5th 2017. My wife seeking divorce from me but i don’t want. Is it possible to avoid getting divorce from her. Please suggest me.

  2. I am entiadtled to 47.5% of his retireadment, I am askading for ssuopal benadeadfits in my divorce papers, am I entiadtled to them? I have been told I will loose all my other benadeadfits upon divorce since I didn’t hit the 20 mark, but I read online that I should receive medadical for one year after divorce since I have been maradried over 15 years, but I don’t know who to ask, the Jag office wasn’t much help, neiadther was the triadcare hotadline. Any inforadmaadtion or advice would be greatly appreciated!

  3. I want divorce , I have so many socialy pain from my wife. I have avidance of her afair with other. I have mobile record talk and one susaid note whitch was wrote by her. She was taken my money also.
    Can you help me? For divorce

  4. It’s a welcomed decision given by the Hon’ble court.Laws,specially those governing the status as fragile as matrimony have to be balanced according to the social norms and well being of the relations entered into.Basic rationale of mutual consent in divorce is to prevent depravity on both the parties and come to an end with free consent.Certainly, the spirit of this consent must not be time bound in the frame of 18 months and should go beyond till the decree of divorce.Law is best when interpreted in factual spirit.Statutes cannot comprehend each n every situation.

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