Section 13A of the Act provides that in any proceeding under the Act, on a petition for dissolution of a marriage by a decree of divorce, except in so far as the petition is founded on grounds mentioned in clauses (4), (8) and (9) above (i.e., conversion to another religion, renouncing the world by entering any religious order, and not having been heard of as being alive for seven years), the Court may, instead of passing a decree of divorce, pass a decree for judicial separation, if it considers it just to do so, having regard to the circumstances of the case.
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Divorce by Mutual Consent (S.13B):
A radical concept was introduced in the Hindu Marriage Act by the 1976 Amendment in the form of S. 13B, dealing with divorce by mutual consent. Prior thereto, such a divorce was possible only under the Special Marriage Act. Now, such a divorce can be obtained also under the Hindu Marriage Act, on a petition of both the parties to the marriage, on the ground:
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(i) That they have been living separately for at least one year;
(ii) That they have not been able to live together; and
(iii) That they have mutually agreed that their marriage should be dissolved.
After such a petition is presented, on the motion of both the parties made not earlier than six months from the date of the petition, and not later than eighteen months from that date, if the Court is satisfied that the averments made in the petition are true, the Court passes a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.
Unilateral Withdrawal of Consent:
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An interesting question arise as to whether one of the parties can withdraw his or her consent unilaterally at a later stage of the divorce petition, and whether the Court can proceed to grant a decree of divorce by mutual consent after such withdrawal.
There has been a conflict of judicial opinion on this point. The High Courts of Punjab and Haryana, Karnataka and Kerala have taken the view that for divorce must continue to mutual consent, exist until the Court passes a decree, and if one of the spouses withdraws such consent, the decree of divorce cannot be passed.
(H. Kaur v. N.Singh, A.I.R. 1988 P. & H. 27; Prakash Kaur v. Bikramjit Singh, A.I.R. 1989 P. & H. 46); Rama Prasad v. Vanamala, A.I.R. 1988 Kar. 162; and Mohanan v. Jeejabai A.I.R. 1988 Ker. 28)
The Bombay High Court has, however, taken a contrary view in Londhe v. Londhe (A.I.R. 1984 Bom. 302)
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The question was again considered by the Delhi High Court, where some of the above cases were referred to, and the Judge preferred the Bombay view, and held a party cannot unilaterally withdraw his consent, unless of course, such consent was proved to have been obtained by force, or undue influence. (Chander Kanta v. Hans Kumar, A.I.R. 1989 Del. 73)
Interestingly, when the same question came up before the Supreme Court, it left the question open, although in the facts of the case, divorce was granted although the wife had unilaterally withdrawn her consent. (Ashok Hurra v. Rupa, (1997) 2 SCC 226)
New Ground for Divorce Suggested by the Supreme Court:
In Jorden Diengdeh v. S.S. Chopra (A.I.R. 1985 S.C. 935), the Supreme Court advocated a total reform of the law of marriage, and suggested that an irretrievable breakdown of marriage should be added as a ground for divorce. The Court observed that the time has now come when a uniform law should be passed on marriage and divorce, and such law should be made applicable to all people in India, irrespective of their religion or caste. As different provisions regarding marriage and divorce currently exist in different statutes governing different religious grounds, a uniform Civil Code of Marriage and Divorce is “an immediate and compulsive need”, the Court observed.
Interestingly, a Bill seeking to introduce irretrievable breakdown of marriage, as a ground of divorce was introduced in Parliament, but later abandoned.
The Delhi High Court has observed in two cases, that irretrievable break-down of marriage is not as yet a ground for the dissolution of a marriage in the scheme of the Hindu Marriage Act, and therefore, a Hindu marriage cannot be dissolved on this ground. (Bhatnagar v. Bhatnagar, A.I.R. 1989 Del. 121; and Nitu v. Krishan Lai, A.I.R. 1990 Del. 1)