Husband Wife Accused Cruelty Can Court Grant Mutual Consent Divorce

The Delhi High Court recently set aside a family court order that dissolved a couple’s marriage by mutual consent in proceedings originally filed as a contested divorce case, holding that separate allegations of cruelty by spouses cannot be treated as “mutual consent” to dissolve a marriage.

Justices Vivek Chaudhary and Renu Bhatnagar were hearing an appeal filed by the wife challenging the family court’s decision of March 2025 to grant a decree of divorce by mutual consent and seeking restoration of the original proceedings.

“Merely because both spouses separately seek dissolution of marriage does not, by itself, amount to mutual consent within the meaning of Section 13B (of the Hindu Marriage Act). A spouse may seek divorce on the ground of cruelty while simultaneously disputing the allegations, conduct or entitlement asserted by the other spouse. Such rival claims continue to retain their adversarial character, even though the ultimate relief sought by both parties may be dissolution of marriage,” the May 29 order read.

It was placed on record that the marriage between the wife and the husband was solemnised in January 2023, according to Hindu rites and ceremonies. It was noted that no child was born from the wedlock. The parties allegedly started residing separately in January 2024.

Later, the husband instituted a case before the family court seeking dissolution of marriage under Section 13(1)(ia) of the Hindu Marriage Act, 1955, on the ground of cruelty. The wife entered appearance in the said proceedings and filed her written statement.

Along with the written statement, the wife also filed a counterclaim under Section 23A of the Hindu Marriage Act seeking dissolution of marriage on the ground that the husband had subjected her to cruelty. Subsequently, in March 2025, the family court took the written statement and counterclaim on record and, on the same date, proceeded to dissolve the marriage between the estranged couple under Section 13B (mutual consent) of the Act.

Aggrieved by this order of the family court, the wife preferred the present appeal, contending that the family court could not have converted contested proceedings with charges of cruelty into a decree of divorce by mutual consent.

Appearing for the wife, advocate Ankit Gupta submitted that the family court acted wholly without jurisdiction in passing a decree under Section 13B in proceedings which were admittedly instituted and contested under Section 13(1)(ia) of the Hindu Marriage Act.

It was submitted that the essential preconditions for granting divorce with mutual consent were absent. It is submitted that the family court could not have presumed consent merely because the estranged couple had, in separate pleadings, sought divorce on allegations against each other.

It was submitted that no effort towards reconciliation was undertaken, nor were the couple afforded an opportunity to lead evidence or contest the allegations levelled against each other.

On the contrary, the husban,d represented by advocate Annu Sharma, argued that the present appeal is devoid of merits and the said judgment does not contain any infirmity which requires appellate interference by this court.

It was submitted that the family court has recorded that both parties were living separately since January, 2024 and that there was no subsisting matrimonial relationship between them.

It was added that in such circumstances, where the estranged couple were seeking divorce, and there was no possibility of reconciliation, the family court was justified in bringing an end to the matrimonial dispute rather than prolonging the litigation.

Richa Sahay is a Legal Correspondent for The Indian Express, where she focuses on simplifying the complexities of the Indian judicial system. A law postgraduate, she leverages her advanced legal education to bridge the gap between technical court rulings and public understanding, ensuring that readers stay informed about the rapidly evolving legal landscape. Expertise Advanced Legal Education: As a law postgraduate, Richa possesses the academic depth required to interpret intricate statutes and constitutional nuances. Her background allows her to provide more than just summaries; she offers context-driven analysis of how legal changes impact the average citizen. Specialized Beat: She operates at the intersection of law and public policy, focusing on: Judicial Updates: Providing timely reports on orders from the Supreme Court of India and various High Courts. Legal Simplification: Translating dense "legalese" into accessible, engaging narratives without sacrificing factual accuracy. Legislative Changes: Monitoring new bills, amendments, and regulatory shifts that shape Indian society. ... Read More