Divorce law in India rests upon two broad frameworks: fault-based divorce (under Section 13 of the Hindu Marriage Act, 1955) and mutual consent divorce (under Section 13B). While the former requires one spouse to prove matrimonial misconduct of the other, the latter is based purely on the spouses’ shared volition to part ways.
A pressing legal question has emerged in recent years: When both spouses file separate divorce petitions on fault grounds, can the court suo motu or otherwise convert those separate pleas into a decree of divorce by mutual consent? Delhi High Court recently addressed this issue in Upinder Kaur Malhotra v. Capt. Teghjeet Singh Malhotra & Anr. (24 September 2025), emphatically ruling that such conversion is impermissible in law.
This article examines the judicial reasoning, statutory framework, and Supreme Court precedents to clarify why mutual consent cannot be inferred merely from the filing of adversarial divorce petitions and what the implications of this principle are for matrimonial jurisprudence in India.
Legal Framework
Section 13: Divorce on Fault Grounds
Section 13 of the Hindu Marriage Act allows either spouse to seek divorce on specific matrimonial offences such as:
- adultery [Section 13(1)(i)]
- cruelty [Section 13(1)(ia)]
- desertion [Section 13(1)(ib)]
- conversion, mental disorder, venereal disease, renunciation, or presumption of death.
These provisions operate on a fault theory, requiring proof of misconduct by one spouse.
Section 13B: Divorce by Mutual Consent
Inserted by the 1976 Amendment, Section 13B permits dissolution of marriage jointly by both spouses if:
- They have lived separately for at least one year,
- They are unable to live together, and
- They mutually agree to dissolve the marriage.
The procedure involves:
- Joint Petition: Both spouses present one petition together.
- Cooling-off period: Six to eighteen months (unless waived by court).
- Second Motion: Both parties must reaffirm consent before the decree.
Thus, mutuality and continuity of consent are jurisdictional prerequisites.
Delhi High Court: Upinder Kaur Malhotra Case
Facts in Brief
- Husband filed for divorce on the grounds of cruelty.
- Wife filed for divorce on grounds of adultery and cruelty.
- Both petitions were tried together.
- The Family Court, instead of deciding on merits, converted the separate petitions into a decree under Section 13B, reasoning that since both wanted divorce, consent could be presumed.
- The wife appealed.
High Court’s Holding
The Division Bench (Justices Anil Kshetrapal and Harish Vaidyanathan Shankar) held:
- The Family Court committed a manifest illegality by converting contested proceedings into a mutual consent decree.
- Mutual consent is not a procedural formality but a substantive statutory requirement. It must be explicit, joint, and continuing until the decree.
- Filing adversarial petitions does not amount to a “meeting of minds.”
- Only the Supreme Court under Article 142 can, in exceptional cases, convert proceedings into a mutual consent divorce (as held in Anil Kumar Jain v. Maya Jain, 2009).
- Accordingly, the High Court set aside the Family Court decree and restored the original divorce petitions for adjudication on merits.
Judicial Reasoning
1. Distinct Nature of Sections 13 and 13B
- Section 13 operates on fault-finding; Section 13B operates on consensual agreement.
- Converting one into the other alters the very character of proceedings—beyond the jurisdiction of Family Courts.
2. Importance of “Mutual Consent”
The Court stressed:
- Consent must exist at the time of filing and continue till the decree.
- It cannot be presumed from circumstances or inferred from long separation.
This aligns with the Supreme Court’s rulings in:
Sureshta Devi v. Om Prakash (1991) – Consent must subsist till final decree.
Smruti Pahariya v. Sanjay Pahariya (2009) – Mutual consent is a jurisdictional fact.
3. Limits on Family Court Powers
Sections 9 and 10 of the Family Courts Act allow procedural flexibility but cannot override substantive statutory safeguards.
The Family Court’s attempt to treat statutory requirements as mere “form” was legally flawed.
4. Extraordinary Power of the Supreme Court
- Only the Supreme Court under Article 142 can, in rare cases, mould relief by converting proceedings into mutual consent divorce (Anil Kumar Jain v. Maya Jain, 2009).
- Other courts lack such plenary power.
Key Highlights of the Decision
Justice Anil Kshetrapal and Justice Harish Vaidyanathan Shankar stated
We reach this conclusion because the manner in which two independent, fault-based petitions under Section 13 were clubbed together and thereafter treated as a single petition under Section 13B is legally impermissible. The adopted course of action effects a substantive change in the nature and character of the original proceedings and disregards the separate and distinct fields in which Sections 13 and 13B of the HMA operate.
The mere fact that both spouses have, independently and separately, sought dissolution of the marriage does not convert their respective petitions into a petition under Section 13B. The foundational requirement of Section 13B is a prefatory, pre-existing, mutual agreement i.e., a meeting of minds, reached before institution of proceedings. In the absence of that consensus at the inception, later-filed parallel petitions cannot be retroactively re-cast as a petition for divorce by mutual consent.
We are of the firm view that the learned Family Court overlooked the most fundamental requirement of Section 13B, the element of ‘mutual consent,
Comparative Analysis with Supreme Court Precedents
Sureshta Devi v. Om Prakash (1991)
- Established that consent must continue until the decree.
- Withdrawal of consent at any stage nullifies the petition.
Smruti Pahariya v. Sanjay Pahariya (2009)
- Reiterated that “mutual consent” is jurisdictional.
- Courts cannot infer consent; it must be explicit.
Anil Kumar Jain v. Maya Jain (2009)
- Clarified that only the Supreme Court under Article 142 can bypass statutory requirements to do complete justice.
- Other courts cannot convert fault-based petitions into mutual consent divorces.
Thus, the Delhi High Court’s ruling is consistent with the established jurisprudence.
Implications
Family Courts’ Jurisdiction Limited
- They must strictly adhere to statutory requirements.
- No suo motu conversion of petitions.
Spouses Must File Joint Petition for Mutual Consent
- Separate petitions will continue on merits.
- If they later reconcile on mutual consent, a fresh joint petition is necessary.
Reaffirmation of Legislative Intent
- Preserves the distinction between contested and consensual divorces.
- Prevents misuse of judicial discretion.
Practical Guidance for Litigants
- Couples desiring a mutual consent divorce should withdraw fault-based petitions and file a fresh joint petition under Section 13B.
- Otherwise, their cases will be decided strictly on the grounds alleged.
Conclusion
The answer to the question—Is it legally permissible to convert separate divorce pleas into a mutual consent petition?—is a firm NO, except in exceptional circumstances where the Supreme Court invokes Article 142 of the Constitution.
The Delhi High Court’s ruling in Upinder Kaur Malhotra v. Capt. Teghjeet Singh Malhotra reaffirms that:
- Mutual consent is a substantive precondition, not a procedural technicality.
- Separate adversarial petitions reflect the absence of consensus, not the presence of it.
- Family Courts cannot bypass statutory safeguards under the guise of procedural flexibility.
In sum, while judicial sympathy towards estranged couples is understandable, the rule of law demands strict adherence to legislative intent. The path of mutual consent divorce remains open, but only through compliance with Section 13B’s explicit requirements.
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