The concept and the idea of mutual consent divorce is envisaged in section 13 B of Hindu Marriage Act, it is the easiest form of divorce in India till now, however still the requirement of section 13 B is that both thee the spouses make a motion before the court and then court will analyse the consent of the spouses and then the divorce will be decreed, Further the requirement of this section is that two motions is to be presented within the gap of 6 months. Now lets suppose that if this six month time gets over and the other spouse has left the city and there is no chance of reconciliation in the Marriage and he/she cant come back because of personal difficulties to file the second motion, so a direct question comes into the mind is that is the mutual consent divorce possible? the answer to this question is yes.
This is a judgment which can help people who want to seek divorce but because of the reason as stated above they are unable to pursue the proceedings. so here is the judgment that can be of help.
In Miloo Nishra V. Arun Kumar AIR 2009 ORI 136
The facts of the case are Husband is in USA and he cannot come for the 2nd motion of mutual consent divorce, the High court at Orissa held that court can’t insist husband to hear him and opportunity of being heard can also be waived of by the party. The affidavit of the husband is an admissible evidence and that can be acted upon and the divorce can be given to the party.
Another alternative is that an attorney must be present
In the absence of party where the attorney appears the courts have to be more cautious and vigilant in recording its satisfaction about the consent in terms of the provisions of the act. it may depend on the facts of case considering who is appearing as attorney merely one of the parties unable to visit India on account of certain unavoidable circumstances the other party cannot be left high and dry and there are always other means and ways by which court can record satisfaction regarding genuineness of the proceedings before the court in presence of attorney. In a given case, same might be by way of getting duly attested affidavit of person with photographs.
Advocate Nitish Banka