Section 13B of the Hindu Marriage Act, 1955, deals with Mutual Consent Divorce. It provides a legal framework for couples who have mutually agreed to dissolve their marriage and have been living separately for a period of one year or more. This section allows them to approach the district court together and seek a divorce decree.
According to subsection (1) of Section 13B, both parties to the marriage must present a joint petition to the district court, stating that they have been living separately for at least one year and have mutually agreed to end their marriage. They must also declare that they have not been able to reconcile and wish for the marriage to be dissolved.
Once the joint application is made, the court will verify the statements made in the application and hear both parties before passing a decree of divorce, as stated in subsection (3). This means that if the court is satisfied with the evidence presented and finds that the conditions mentioned in the petition are met, it will declare the marriage dissolved.
In cases where one party files a petition for divorce under Section 13A (desertion), and the other party does not contest or fails to appear in court on the specified date, subsection (4) states that it will be presumed that both parties have mutually agreed to dissolve the marriage. In such cases, the court may pass a decree of divorce based on the evidence provided by the petitioner.
Subsection (5) allows for a divorce decree even if one party does not consent to it. The court may grant a divorce if it is satisfied, after hearing both parties and conducting an inquiry, that the marriage has been solemnized and the allegations made in the petition are true.
Furthermore, subsection (6) states that if there has been no resumption of cohabitation between the parties for one year or more after an order of judicial separation under Section 10A (judicial separation), the court may grant a decree of divorce.
It is important to note that Section 13B does not apply to marriages solemnized before the commencement of the Hindu Marriage (Amendment) Act, 1976, as mentioned in subsection (7).
Now let us discuss some relevant case laws related to Section 13B and its relevance to Non-Resident Indians (NRIs):
1. Sureshta Devi v. Om Prakash: In this case, the Supreme Court held that the one-year separation period mentioned in Section 13B can be waived by the court if it is satisfied with the reasons provided by the parties for not living separately for one year. This flexibility allows NRIs who have been living apart for less than a year to seek a mutual consent divorce.
2. Ruchi Majoo v. Sanjeev Majoo: The Delhi High Court ruled that the requirement of physical presence of both parties in court for filing a joint petition can be relaxed for NRIs. It stated that video conferencing can be used as an alternative to physical presence, considering the practical difficulties faced by NRIs.
3. Anil Kumar Jain v. Maya Jain: The Supreme Court held that even if one party withdraws consent before the decree of divorce is passed, the court has the power to proceed with the divorce if it is satisfied with the grounds mentioned in the petition. This ensures that one party cannot unilaterally delay or obstruct the divorce process.
4. Amardeep Singh v. Harveen Kaur: In this case, the Supreme Court clarified that the cooling-off period of six months mentioned in Section 13B(2) is not mandatory and can be waived by the court if it finds that there is no possibility of reconciliation between the parties.
These case laws highlight how Section 13B provides flexibility and convenience for NRIs seeking a mutual consent divorce. It takes into account their unique circumstances, such as living apart for less than a year or facing difficulties in physically appearing in court. The provision for video conferencing and the power of the court to waive certain requirements ensure that NRIs can access justice and dissolve their marriages amicably.