As per Section 13B(1) of Hindu Marriage Act 1955 (1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnised before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976), on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.
Sample Format of Affidavit to be filed with Second Motion of Mutual Consent Divorce Petition under Section 13B of HMA is given below:
IN THE COURT OF THE _____________ JUDGE AT _________
H.M.A. PETITION NO. __________ OF 20__
IN THE MATTER OF:
MRS. WI_________ PETITIONER NO. 1
MR. HU __________ PETITIONER NO. 2
I, Ms. _______________ Wife of _______________ Daughter of ___________ aged _________ years, presently residing at _________________________, do solemnly affirm and say as follows:
1. That I am the Petitioner No. 1 in the accompanying Petition under Section 13B(1) of Hindu Marriage Act, 1955 and well acquainted with the facts of the case.
2. That I have gone through the contents of the accompanying Petition, I reaffirm the contents of the Petition, which are not being repeated here, for the sake of brevity.
3. That the marriage of the parties was solemnised at ___________ on____________, as per Hindu rites and ceremonies.
4. That all the efforts of reconciliation between the parties to continue the present marriage has failed and there are no further chances of reconciliation between the parties any more.
5. That a male child, by the name of _______________, was born out of the wedlock between the parties on _________________________________.
6. The said child is in the care and custody of the deponent and petitioner No. 2 has only visitation rights with regard to the child.
7. That the parties had filed a petition for dissolution of their marriage on the ground of mutual consent under section 13B(1) of the Hindu Marriage Act, 1955, by way of first motion, wherein this Hon'ble Court was pleased to pass orders allowing the petition.
8. That the details mentioned in the accompanying petition, regarding the age, status and place of residence of the deponent at the time of marriage and at the time of institution of this petition, may be read as a part of this affidavit for the sake of brevity.
9. That the parties herein lived together in the house of petitioner No. 2 till the petitioner No. 1, owing to the temperamental differences with the petitioner No. 1 and absolute incompatibility between the two, left the matrimonial home on _________.
10. That the parties could not live together and have been living separately since the aforementioned date and there has been absolutely no cohabitation between the parties ever since.
11. That owing to the failure of all efforts of both the parties at reconciliation, the marriage between the parties has come to an irretrievable breakdown.
12. That the parties have compromised all their disputes and have decided to seek divorce by mutual consent on the following terms:
13. The petitioner No. 2 has agreed to pay a sum of Rs ________ in all to the deponent towards maintenance past and future for the deponent and the minor child, stridhan, dowry in whatever form, etc., and thereafter the deponent will have no right to lay any claim, whatsoever, on the person or any property of petitioner No. 2.
14. That out of the aforesaid amount, a sum of Rs ______ has already been paid by petitioner No. 2 to the deponent by way of draft No ______dated issued by in the Court of Shri ________ on when the deponent had withdrawn her petition under Domestic Violence Act.
15. That balance, a sum of Rs __________ shall be paid at the time of recording of the statement of the petitioners in the first motion before this Court and another sum of Rs _____ shall be payable at the time of recording the statement in the second motion before this Court.
16. That a sum of Rs _______ is, therefore payable by way of a demand draft
bearing No __________ issued by _________________Bank.
17. That it has been agreed between the parties that the child named above shall remain in care and custody of the deponent and petitioner No. 2 shall have visitation rights only.
18. That petitioner No. 2 shall never claim the custody of the said child and the deponent has undertaken not to claim any maintenance from petitioner No. 2 for the said child.
19. That the mutual consent has not been obtained by any force, fraud or undue influence.
20. That the petition has not been presented in collusion with the petitioner No. 2.
21. That there has not been any unnecessary or improper delay in filing this petition.
22. That there is no other legal ground why the relief should not be granted.
Signed at ___________ this ___________ day of ___________20__
I, the above named deponent do hereby verify on oath that the contents of the affidavit above are true to my personal knowledge and nothing material has been concealed or falsely stated therein.
Signed and verified this _______ day of _______ 20 _______ at _______
Solemnly affirmed and signed before me by the deponent, who is personally known to me, on this the _____ day of ________ ,20__.
COUNSEL FOR THE DEPONENT
13B Divorce by mutual consent.
(1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnised before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976), on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.
(2) On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnised and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.]
(i) The period of 6 to 18 months provided in section 13B is a period of interregnum which is intended to give time and opportunity to the parties to reflect on their move. In this transitional period the parties or either of them may have second thoughts.
(ii) The period of living separately for one year must be immediately preceding the presentation of petition. The expression living separately' connotes not living like husband and wife. It has no reference to the place of living. The parties may live under the same roof and yet they may not be living as husband and wife. The parties should have no desire to perform marital obligations.
(iii) The period of six to eighteen months time is given in divorce by mutual
consent as to give time and opportunity to the parties to reflect on their move
and seek advice from relations and friends. Mutual consent should continue till
the divorce decree is passed. The court should be satisfied about the bona fides
and consent of the parties. If there is no consent at the time of enquiry the
court gets no jurisdiction to make a decree for divorce. If the court is held to
have the power to make a decree solely based on the initial petition, it negates
the whole idea of mutuality. There can be unilateral withdrawal of consent.
Held, that since consent of the wife was obtained by fraud and wife was not
willing to consent, there could be unilateral withdrawal, of consent.