The Delhi High Court has emphasized that explicit consent is crucial for granting a mutual consent divorce, ruling that it cannot be assumed or granted without clear, voluntary agreement from both parties. This landmark judgment underscores that mutual consent divorce under Section 13B of the Hindu Marriage Act, 1955, requires genuine, simultaneous, and conscious consent from both spouses.
Key Aspects of Mutual Consent Divorce-
Explicit Consent: Consent must be explicit, free, and voluntary, without coercion or undue influence.
Joint Petition: Typically requires a joint petition by both spouses stating they’ve lived separately for at least one year and can’t live together.
Two-Stage Process: Involves a first motion (filing petition) and second motion after a cooling-off period (six months, which can be waived in certain cases).
Continued Consent: Mutual consent must persist until the decree is passed; either party can withdraw consent before the decree.
Relevant Judicial Pronouncements-
Sureshta Devi v. Om Prakash (1991): Supreme Court held the cooling-off period isn’t mandatory and can be waived.
Amardeep Singh v. Harveen Kaur (2017): Supreme Court ruled the cooling-off period is directory and can be waived if spouses have lived separately for over a year with irreconcilable differences.
Delhi HC Ruling (2025): Emphasized explicit consent can’t be assumed; Family Court can’t Suo motu convert adversarial petitions into mutual consent divorce without proper consent.
Implications-
No Assumption of Consent: Courts won’t grant divorce by mutual consent based on assumptions or separate adversarial petitions.
Voluntary Agreement: Ensures divorces are based on genuine mutual agreement, protecting parties’ rights.
The Delhi High Court has made it clear that explicit consent is paramount for granting a divorce by mutual consent, emphasizing that it cannot be assumed or inferred. In a landmark ruling, the court set aside a Family Court decree that converted adversarial divorce petitions into a mutual consent divorce under Section 13B of the Hindu Marriage Act, 1955, highlighting that statutory requirements can’t be bypassed. The judgment underscores that mutual consent must be explicit, joint, and continuing until the decree is passed, stressing it’s not just a procedural formality but a substantive statutory requirement.
