The Delhi High Court has ruled that separate allegations of cruelty leveled by spouses against one another cannot be treated as mutual consent to end a marriage.
With this ruling, a division bench of Justices Vivek Chaudhary and Renu Bhatnagar set aside a March 2025 family court order that had dissolved a couple’s marriage by mutual consent during proceedings that were originally filed as a contested divorce. The High Court directed the family court to restore the original contested proceedings, frame the necessary issues, allow both parties to present their evidence, and decide the case on its merits.
The bench emphasized that simply because both spouses separately seek the dissolution of their marriage, it does not satisfy the legal definition of mutual consent under Section 13B of the Hindu Marriage Act. The court observed that a spouse might seek a divorce based on cruelty while simultaneously contesting the allegations and conduct asserted by the other party. According to the ruling, such opposing claims continue to maintain their adversarial nature even if the ultimate outcome sought by both spouses is the dissolution of their union.
The case stems from a marriage solemnized in January 2023 under Hindu rites. The couple, who did not have any children, began living separately in January 2024.
The husband subsequently initiated divorce proceedings in the family court on the grounds of cruelty under Section 13(1)(ia) of the Hindu Marriage Act. The wife entered her appearance and filed a written statement alongside a counterclaim under Section 23A of the Act, which also sought a divorce based on allegations of cruelty by the husband.
In March 2025, the family court took the wife’s written statement and counterclaim on record. On the exact same day, the family court proceeded to grant a divorce by mutual consent under Section 13B of the Act. The wife then appealed the decision, arguing that the family court could not legally convert contested proceedings containing allegations of cruelty into a mutual consent decree.
Representing the wife, advocate Ankit Gupta argued that the family court acted entirely without jurisdiction by issuing a mutual consent decree under Section 13B in a case filed and contested under Section 13(1)(ia). Gupta stated that the essential legal preconditions for a mutual consent divorce were completely missing. He contended that the family court could not assume consent existed merely because the couple had submitted separate pleadings seeking divorce against each other. Gupta added that the court failed to initiate reconciliation efforts and did not give the spouses an opportunity to present evidence or contest the allegations.
In contrast, advocate Annu Sharma, representing the husband, argued that the appeal lacked merit and the family court’s decision was free from legal error. Sharma submitted that the family court had correctly recorded that the couple had been living apart since January 2024 with no active matrimonial relationship remaining. Under such circumstances, with no prospect of reconciliation, Sharma argued that the family court was justified in ending the matrimonial dispute quickly rather than allowing the litigation to drag on.
In its decision, the High Court focused on the procedural and substantive differences between fault-based and consent-based divorces. The bench noted that Section 13 of the Hindu Marriage Act deals with fault-based divorce, which requires the court to adjudicate specific matrimonial wrongs alleged by one spouse against the other. In contrast, Section 13B deals with mutual consent, where the decree is based on a mutual agreement to end the marriage rather than an established fault.
The High Court further pointed out that while a cruelty-based divorce petition can be filed individually by either spouse, a mutual consent divorce strictly requires a joint petition presented by the couple together. The court observed that mutual consent requires a shared decision to end the marriage, and this consent must remain active when the court is asked to pass the final decree. The dual requirement of a joint petition and a subsequent motion is designed to verify that the consent of both parties remains genuine, voluntary, and continuous until the end of the proceedings.
