DIVORCE can be a deeply challenging and emotionally charged process. Understanding how to negotiate a fair divorce settlement, both inside and outside the court, is crucial for ensuring a just outcome for all involved. This article explores the mechanisms and considerations of divorce settlements, bolstered by recent judicial rulings and practical advice.

The grounds for divorce under Section 13 of The Hindu Marriage Act, 1955, are as follows:

General Grounds for Divorce for Both Husband and Wife

1. Adultery: The spouse has had voluntary sexual intercourse with any person other than their spouse after the solemnization of the marriage.
2. Cruelty: The spouse has treated the petitioner with cruelty after the solemnization of the marriage.
3. Desertion: The spouse has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition.
4. Conversion: The spouse has ceased to be a Hindu by converting to another religion.
5. Unsound Mind/Mental Disorder: The spouse has been incurably of unsound mind or has been suffering continuously or intermittently from a mental disorder to such an extent that the petitioner cannot reasonably be expected to live with them.
   • The term “mental disorder” includes mental illness, arrested or incomplete development of mind, psychopathic disorder, or any other disorder or disability of mind, including schizophrenia.
   • “Psychopathic disorder” refers to a persistent disorder or disability of mind, including abnormally aggressive or seriously irresponsible conduct.
6. Venereal Disease: The spouse has been suffering from a venereal disease in a communicable form.
7. Renunciation: The spouse has renounced the world by entering any religious order.
8. Presumption of Death: The spouse has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of them if they were alive.

Additional Grounds for Either Party to Petition for Divorce

1. No Resumption of Cohabitation: There has been no resumption of cohabitation for a period of one year or upwards after the passing of a decree for judicial separation.
2. No Restitution of Conjugal Rights: There has been no restitution of conjugal rights for a period of one year or upwards after the passing of a decree for restitution of conjugal rights.

What is a Divorce Settlement?

A divorce settlement agreement is a crucial document that outlines the terms and conditions agreed upon by parties seeking a divorce, aimed at ensuring a smooth and amicable dissolution of their marriage. It covers various aspects such as child custody and visitation rights, child support, distribution of marital property including real estate and financial assets, allocation of debts and liabilities, alimony or maintenance payments, and other household matters. The agreement serves to prevent future disputes by clearly defining each party’s rights and obligations post-divorce.

Is Divorce settlement legally binding?

A settlement agreement is a legally binding contract resolving disputes among parties before a judgment is passed. Such agreements, formed through mediation, require court approval. Settlement agreements ensure clarity, avoid future conflicts, and save time in court proceedings.

Settlement Agreements, reached between the parties in writing and signed by the parties, become legally binding when approved by the court at the time of the final court hearing.

Withdrawing Consent in Divorce by Mutual Consent

Divorce by mutual consent is a legal process allowing a married couple to dissolve their marriage amicably with the agreement of both parties.

• As per Section 13B of the Hindu Marriage Act, 1955, parties belonging to Hindu, Jain, Sikh and Buddhist religions can apply for mutual divorce. The Act mandates parties to live separately for one year before seeking a divorce.
• As per Section 28 of the Special Marriage Act, 1954, parties belonging to different castes or NRIs can apply under this Act for mutual divorce. This Act also mandates parties to live separately for a time period of one year before seeking a divorce.
• As per Section 10A of the Indian Divorce Act, parties belonging to the Christian religion can apply for mutual divorce. The Act mandates parties to live separately for a time period of 2 years before seeking a divorce.

Requirements for Divorce by Mutual Consent:

1. Living Separately: The spouses must have been living separately for at least one year or more.
2. Mutual Agreement: Both parties must mutually agree that they cannot live together and that the marriage should be dissolved.
3. Grounds: The grounds for the petition include the inability to live together and mutual consent for dissolution of the marriage.

Procedure and Timelines:

1. Joint Petition: The couple jointly files a petition for divorce in the family court.
2. First Motion: Upon filing the petition, the court records the statements of both parties (referred to as the First Motion).
3. Cooling-off Period:
   • The HMA and SMA both mandate a statutory cooling-off period of at least 6 months from the date of presentation of the divorce petition. This period is meant to allow the parties to reconsider their decision and explore the possibility of reconciliation or settlement.
   • The cooling-off period can extend up to 18 months from the date of the initial petition.
4. Second Motion:
   • If the petition is not withdrawn during the cooling-off period and both parties still wish to proceed with the divorce, they must file a Second Motion after the completion of the 6-month period but within 18 months.
   • The court will again hear the parties and conduct necessary inquiries.
5. Decree of Divorce:
   • If the court is satisfied that the marriage has irretrievably broken down, it will pass a decree of divorce, officially dissolving the marriage.

Special Considerations

• Waiver of Cooling-off Period: The Supreme Court of India has the discretion to waive the six-month cooling-off period in certain cases where it deems that the waiting period would only prolong the inevitable and both parties are resolute in their decision to divorce.
  
  In the case of Amardeep Singh vs Harveen Kaur, (2017) the Hon’ble Supreme Court of India held that the six-month cooling period for granting divorce by mutual consent under Hindu law is not mandatory and can be waived by the trial court under certain circumstances. Specifically, the apex court ruled that the minimum period of six months can be relaxed if there is no possibility of settlement between the parties. The court further stated that parties seeking divorce by mutual consent can file a waiver application after a week of filing the first motion. This is applicable in cases where the parties have been living separately for more than 18 months before filing the petition.
• Withdrawal of Consent: Either party can withdraw their consent at any time before the decree of divorce is passed. If one spouse withdraws consent, the court cannot grant a divorce by mutual consent. This ensures that the divorce process remains genuinely consensual at all stages.

Consent must always be continuous and prevalent

It was held that the mere filing of a petition for mutual consent divorce does not authorize the court to grant a divorce decree by Delhi High Court in Yash Mehra v. Arundhati Mehra, (2009).

Rather, mutual consent must be present at every stage of the proceedings. The consent must be continuous and unambiguous for the court to pass a decree of divorce by mutual consent, reflecting the strict adherence to this principle in Indian matrimonial law as held by the Hon’ble SC in Smruti Pahariya v. Sanjay Pahariya, (2009).

Can consent, once given, be withdrawn unilaterally?

Parties have a right to unilaterally withdraw consent to adivorce petition, as specified in Section 13-B(2) under the Hindu Marriage Act (HMA). This right allows either party to withdraw their consent for any reason, even after initially agreeing to divorce by mutual consent. The Supreme Court in Hitesh Bhatnagar v. Deepa Bhatnagar, (2011) has affirmed this principle, emphasizing that the cooling-off period mandated by law is intended to provide time for reflection and consultation, during which either party may change their mind and decide not to proceed with the divorce. The court cannot grant a decree of divorce by mutual consent if one party withdraws consent before the second motion, as established in various judicial precedents.

This right to withdraw consent remains intact regardless of any prior undertakings or agreements made during legal proceedings or settlements.

Withdrawal of consent should be genuine and legitimate

It was held in Shikha Bhatia v. Gaurav Bhatia, (2010) that while parties have an unconditional right to withdraw their consent to mutual divorce, such withdrawal must be genuine and legitimate. Courts have intervened in cases where the withdrawal of consent was deemed improper or motivated by ulterior motives, such as financial gain or extortion of additional assets.

In Anil Kumar Jain v. Maya Jain, (2009), despite the wife withdrawing her consent after receiving valuable property rights in consideration of the divorce and refused to cohabit with her husband despite her explicit refusal to proceed with the divorce, the Supreme court upheld the divorce and the associated settlement. This illustrates that withdrawal of consent cannot be used opportunistically to manipulate the divorce process. It’s crucial that the reasons for withdrawing consent are reasonable and genuine. Therefore, while the right to withdraw consent is unrestricted, courts scrutinize the legitimacy of such withdrawals to prevent abuse of the legal process.

Consequences of withdrawal of consent illegitimately and not abiding by the settlement agreement

Rajat Gupta vs Rupali Gupta, (2018)

The court held that:

Right to Withdraw Consent:

• Section 13B of the Hindu Marriage Act allows either party to withdraw consent at any time before the decree of divorce is finally passed. This right to withdraw consent is unqualified and unfettered, meaning that even if a party has given an undertaking in a legal proceeding or recorded in a settlement/joint statement, they still retain the right to withdraw their consent at any stage until the decree is granted.
• The mutuality of consent is a sine qua non (an essential condition) for passing a decree of divorce by mutual consent. Therefore, consent must exist at both stages of the process: when filing the first motion under Section 13B(1) and during the second motion under Section 13B(2).

Settlement Agreements and Undertakings:

• Any agreement or undertaking that seeks to waive the right to withdraw consent is not enforceable. Any such waiver would be against the statutory provisions and public policy, as the statute explicitly keeps a window open for parties to reconsider their decision.

Contempt of Court:

• The court held that contempt proceedings cannot be used to compel a party to consent to a divorce. Contempt is applicable for enforcing compliance with court orders but not for enforcing consent in divorce matters. They can still be held liable for civil contempt if they breach the terms and conditions of an undertaking given to the court or a settlement agreement incorporated in a court order.
• The court retains the jurisdiction to entertain contempt proceedings and can direct the restoration of the status quo ante. This includes restoring parties to the position they were in before the settlement agreement or consent order was breached and may involve the disgorgement of any benefits or advantages gained by the defaulting party.
• However, no court can compel a party to give consent for a divorce by mutual consent through contempt proceedings, as this would contravene the intent and provisions of Section 13B of the Act.

Trisha Singh v. Anurag Kumar, (2024)

In this case, the Supreme Court granted a decree of divorce after the wife, Trisha Singh, disregarded a settlement agreement reached through mediation. Despite agreeing to terms that included the withdrawal of the husband’s matrimonial case and receiving Rs. 50 lakhs as part of permanent alimony, Trisha Singh later backed out from the settlement. This led the Court to find her conduct recalcitrant and detrimental to her husband, who had already withdrawn the case and made substantial payments. The Court invoked Article 142 of the Indian Constitution to dissolve the marriage, noting irretrievable breakdown and the impossibility of reconciliation. The husband was directed to fulfil the remaining financial obligations under the settlement. This case underscores the importance of honouring mediated settlements and the consequences of failing to do so in legal proceedings.

Anurag Goel V. Chhavi Agarwal, (2023)

In this case, the Delhi High Court found the wife guilty of contempt of court for wilfully disobeying a divorce settlement agreement with her husband. Despite committing to abide by the terms, including executing a gift deed and withdrawing legal proceedings, the wife withheld compliance, citing issues with procuring documents and dissatisfaction with the financial settlement. The court imposed a Rs. 2,000 fine and sentenced her to one month of simple imprisonment, suspending the sentence for two weeks to allow her a chance to comply and apologize. The judgment emphasized the importance of honouring court undertakings and highlighted the consequences of abusing legal processes, aiming to maintain the credibility of judicial proceedings and agreements.

Case Citation: 2024 LiveLaw (Ker) 181 Case number: MAT.APPEAL NO. 894 OF 2023

In this case, the couple, married since 2014 and living separately since 2018, had multiple disputes resolved through mediation in 2022, including a mutual consent divorce and financial settlement. However, after the husband made part of the agreed payment and the permanent custody of child was given to the wife, the wife withdrew her consent, claiming lack of free will. 

The Kerala High Court upheld the judgement passed by the Family Court dissolving the marriage between the parties in a joint petition filed for divorce, even though the wife withdrew her consent for filing the divorce.

The Family Court dissolved the marriage by relying upon the decision in Benny v. Mini (2021) and the Bombay High Court judgment in Prakash Alumal Kalandari v. Jahnavi Prakash Kalandari (2011). The Court stated that one party cannot unilaterally withdraw from the terms of settlement entered through a mediation agreement after the other party has performed their part of the settlement terms.

Prakash Alumal Kalandari vs. Jahnavi Prakash Kalandari (2011)

In this case, the respondent (wife) filed for divorce on the grounds of cruelty, which was contested by the appellant (husband), who also sought custody of their children. They later agreed to divorce by mutual consent, signing Consent Terms on October 6, 2008, where the husband agreed to child custody terms and financial arrangements, and both parties agreed to withdraw legal actions against each other. However, the husband later sought to withdraw his consent, citing the wife’s failure to provide access to the children. The Family Court found his claim unsubstantiated and ruled that he could not withdraw his consent, especially since the wife had already acted upon the Consent Terms to her detriment.

The Bombay High court acknowledged that in cases where mutual consent is withdrawn before the decree, ordinarily, the court cannot pass a decree of divorce by mutual consent. However, given the unique facts, especially the appellant benefiting from and the respondent acting upon the Consent Terms, the court found that allowing withdrawal of consent would result in injustice to the respondent. Thus, the court held that unilateral withdrawal of consent in such circumstances should not be permitted, particularly when the respondent had acted to her detriment based on the Consent Terms.

Ritu Sethi v. Vivek Sethi, (2023)

Held: In this case, the Delhi High Court upheld a Family Court’s decree granting divorce on grounds of cruelty. It ruled that a spouse’s unilateral retraction from a mutually agreed divorce settlement constitutes mental cruelty. The Court highlighted that such actions, driven by ego and vengeance, cause significant disquiet and uncertainty. The couple, married in December 2001 and separated in January 2003, had initially agreed to a mutual consent divorce, but wife later withdrew, she had accepted and then returned a demand draft as part of the settlement, leading husband to file for divorce. The court found the wife’s allegations of adultery against her husband unsubstantiated and her filing of false criminal cases against him and his family as acts of cruelty. The bench concluded that the wife’s actions demonstrated a non-adjusting attitude and lack of maturity, causing the husband public humiliation and mental suffering, thereby affirming the divorce.