Separate Pleas By Husband, Wife Can't Be Converted To Petition For Divorce By 'Mutual Consent': Delhi High Court

The Delhi High Court has ruled that separate petitions by husband and wife seeking dissolution of their marriage cannot be converted to a petition for “mutual consent” divorce under Section 13B of Hindu Marriage Act. “The mere fact that both spouses have, independently and separately, sought dissolution of the marriage does not convert their respective petitions into a petition under Section 13B,” a division bench comprising Justice Anil Kshetarpal and Justice Harish Vaidyanathan Shankar said. The Court said that the foundational requirement of Section 13B is a prefatory, pre-existing, mutual agreement- a meeting of minds, reached before institution of proceedings. In the absence of that consensus at the inception, later- filed parallel petitions cannot be retroactively re-cast as a petition for divorce by mutual consent, it added.“We must also emphasise the significance of the phrase- mutually agreed, used in Section 13B(1) of the HMA. It is not satisfied by the mere filing of separate petitions by the parties. The learned Family Court's characterization of the words ―together and ―mutually agreed, as merely matters of form is completely erroneous and strikes at the core of Section 13B. Re-characterising parallel, independent fault-based petitions as a mutual-consent petition without a clear, prior, joint agreement would circumvent the statutory safeguards and would therefore be contrary to law,” the Court said. The Bench allowed a plea filed by wife challenging a family court order dissolving her marriage with the husband by pronouncing a decree of divorce suo motu under Section 13B of the Hindu Marriage Act. Both husband and wife had filed separate pleas on the grounds of cruelty. Additionally, the wife also invoked the ground of adultery against the husband. The Bench allowed the appeal and restored both the divorce petitions to the file of the Family Court for fresh adjudication in accordance with law. The Court observed that Section 13B of the Hindu Marriage Act rests upon the mutuality of consent of the spouses to the act of separation, and that the consent must be express and unequivocal and cannot be inferred by implication."The mere fact that two parties have independently filed petitions seeking dissolution of the marriage cannot, by itself, establish the essential element of the ―coming together‖ that Section 13B requires. Separate petitions do not equate to a meeting of minds."It added that it is only when both parties consciously and jointly agree to dissolve the marriage that the jurisdiction of the court under Section 13B of the HMA is validly invoked.“Therefore, the learned Family Court's assumption of such plenary powers in the present case is wholly without authority and legally unsustainable,” the Bench concluded.Title: X v. YCitation: 2025 LiveLaw (Del) 1192Click here to read order

Separate Pleas By Husband, Wife Can't Be Converted To Petition For Divorce By 'Mutual Consent': Delhi High Court

Nupur Thapliyal

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