The Delhi High Court has drawn a firm boundary around the idea of “mutual consent” in divorce, ruling that it cannot be conjured up simply because both spouses independently file petitions seeking separation. Consent, the Court stressed, is not an afterthought—it must exist before the legal process even begins.
A Bench of Justices Anil Kshetarpal and Harish Vaidyanathan Shankar made it clear that Section 13B of the Hindu Marriage Act demands a genuine meeting of minds. Mutual consent, the judges noted, is not a box to be ticked or inferred by convenience—it is the foundation stone of the provision.
The ruling came while overturning a Patiala House Court order from July 2024, which had dissolved a marriage under Section 13B even though the couple had originally filed hostile petitions under Section 13(1), accusing each other of cruelty and adultery. The family court had treated their separate pleas as evidence of a shared desire to part ways.
The High Court called that reasoning “a grave and manifest illegality.” It emphasised that the safeguards of Section 13B—such as the cooling-off period and the second motion where both sides must reaffirm their decision—are not mere formalities but essential protections.
“To assume consensus from adversarial petitions is to rewrite the law,” the judges said. “Consent under Section 13B must be explicit, unequivocal, and voluntary. It cannot be manufactured by judicial assumption or convenience.”
The Court also cautioned that in granting divorce this way, the family court had strayed into territory reserved only for the Supreme Court under Article 142, which allows it to dissolve marriages on equitable grounds beyond statutory limits.
Restoring the separate petitions to the family court, the Bench underscored that while judges may have leeway to adopt flexible procedures for reconciliation, they cannot dilute or bypass the substantive requirements laid down by law.
In short: the Delhi High Court has signalled that shortcuts in divorce proceedings won’t pass muster—mutual consent must be real, not retrofitted.