Hindu Marriage Act 1955 Section 13B

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Section 13B Hindu Marriage Act

Mr Prakash Alumal Kalandari and Ms Jahnavi Prakash Kalandari decided before the Bombay High Court that a divorce petition filed by Simplicitor envoys under Section 13B of the law must convince the Court that the consent of both parties will continue to exist until the date on which the divorce judgment is issued. The decision in Sureshta Devi case was accepted by a three-judge panel of the Supreme Court of India in a separate case by Smruti Pahariya, in which the court claimed that the court's divorce decree was based on Section 13(b) of that law the continued mutual agreement of both parties. If one of the parties withdraws its consent, the court has no power to issue the decree with respect to the mandate of Section 13b of Hindu Marriage Act.  

Paragraph 23 (1) provides that the mutual consent established in 1976 in the proceedings can be defended not only if the court is convinced that the divorce is sought on the basis of mutual consent but also that the mutual consent is not obtained by force, fraud or inappropriate influence and that the court may order such facilitation. Subject to the provisions of the Section on Mutual Agreement, an application for dissolution of the marriage or a judgment of divorce may be filed with the Family or District Court of the spouses because they have been separated for a year or more, are unable to live separately, or both agree to the dissolution of the marriage. Upon consulting the parties, if the courts are satisfied that the application content is true and that there is no possibility of reconciliation or cohabitation and the issues with children and property have been resolved, the court may issue a divorce decree and declare the marriage dissolved.

The Supreme Court made a notable finding in the recent landmark case of Amardeep Singh v. Harveen Kaur that the six-month waiting and cooling period provided for in Section 13B-2 of the Act is not compulsory. The high court said that under Hindu law the minimum six-month cooling period before a divorce judgment can be relaxed by the court in certain situations and estranged couples can file a complaint for an annulment within a week of submitting the first application. Divorce proceedings before family courts in continuing extraordinary cases can be suspended for a cooling-off period of up to six months if other conditions are met, including that the parties have been together for more than 18 months, attempts at counselling and mediation have failed to reunite them, and they have settled their maintenance disputes.   

The Supreme Court ruled that the 6-18 month interval period (cooling period) of the Act, as provided in paragraph 13B-2 of the Act, and the Act itself are not compulsory, and the provision in the Directory may be revoked in certain circumstances. The parties are at liberty to ask the court concerned to reconsider in the light of that order. If the above conditions are met, the waiver of the waiting period for the second application is at the discretion of the court.

In the case of such a marriage, Petitioner 1 and Petitioner 2 were solemnly married on 17 February 2016. The difference between them is that they have been living together since October 1, 2018.

In the event of an amicable divorce, Section 13B of the Hindu Marriage Act of 1955 stipulates that in the event of a settled divorce a marriage period of 18 months or one year under Section 13B-1 and six months under Section 13b-2 is provided. The Supreme Court has lifted the cooling off period for a divorce by mutual consent of a woman through her estranged husband if she declares her intention to marry a Indian citizen outside India within a limited number of days. Civil action was filed on 8 May 2017 with the Family Court of West Tis Hazari Court in New Delhi and the declaration of parties is now on file.   

Divorce is the process by which the marriage ends of two adults and is solemnly consummated under various laws: Hindus (including Sikhs, Jains and Buddhists) are subject to the Hindu Marriage Act of 1955 while Christians are subject to the Indian Divorce Act of 1869 and the Indian Christian Marriage Act of 1872. More recently, we have found that parties who want to end their marriage by amicable divorce often have long negotiations and discussion times when they are in different parts of the world, either via Skype or with other forms of technology such as WhatsApp calls or video conferencing. In any case, if they reside in another part of the country or around the world due to job restrictions or other constraints such as illness, they are not able to sign and verify the pleadings and bring the application for the dissolution of the marriage before the courts.

A reading of the above indicates that the Supreme Court has created a flexible context for the representation of parties by their close relatives, partners, siblings and other persons with whom the parties have placed trust and appointed proxy cases.