The Legal Zone

Accentuation of sacred character of marriage in India and positioning of this sacred bond profoundly in social, cultural and religious facets of Indian circumstances, reflects the unique feature of marriage in India which has hitherto subdued the effect of contractual nature of marriage.

For quite a long period of time, marriage in India were regarded as bond or union of two families rather than that of two individual equal parties. Certainly, it cannot be said that the notion has completely withered away from entire India, but there has been a significant change in idea of marriage.

The institution of marriage in India is governed by various personal laws providing a blend of rules of wide connotations and characters making remedy to matrimonial disputes revolving an intricate cycle. Often, matrimonial disputes result in astronomical number of cases in Indian Courts. This also causes expensive litigation and cumbersome process, enervating already aggrieved parties.

In Indian courts, judges and counsellors endeavour to strike out conciliation between parties in disputes arising out of marital relations. In fact, proceedings in the family courts have flexibility and an informal conduct that is conducive for settlements between the parties. When parties agree to a settlement, consent terms between the parties are signed reflecting compatibility.

Thus, Consent note paves the way on which pronouncements of the Family Courts in India depends. In western world, the idea of marriage has more or less evolved as a contractual understanding between the spouses.

Many a times, martial relations are guided by an agreement specifying the rights and duties of both the spouses in uncertain circumstances, mostly after marriage. Such agreements are accorded before the marriage with consent of both the parties as important element. As such the consent terms during disputes are sparingly looked upon, and judgements are pronounced on such agreements, more commonly known as prenuptial agreements. The aim of such agreement is to provide protective covering to the interests of both the parties equally.

Though in India, such agreement between the families of the spouses existed in annals of history but were never formalised. Various courts have held such agreements to be invalid, rather mechanism of bringing consensus through consent terms during the disputes is given prominence for the settlement and resolution of matters.

Consent Note, Matrimonial Disputes and Remedies

Marriage in India is revered as a sacred bond (samskara) and a union of two souls. Though held to be everlasting, marital disputes may cause an end to the relationship making parties involved in legal battle for their rights. In India, when martial affairs are marred by conflicts between the two parties, the matter often ends up for resolution at Family Courts.

Family courts in India, could be ascribed as the most notable means to deliver justice when conflict in marital affairs between a couple arises. This is due to rigid legal mechanism and less propensity of parties to adopt for other means such ADR, mediation and conciliation.

When, in some cases, matrimonial disputes pop up between husband and wife, certain matrimonial remedies are available under the Hindu Marriage Act, 1955 to provide relief to the aggrieved spouse.

The remedies may include:

Restitution of Conjugal Rights (Section 9)

Judicial Separation (Section 10)

Void and Voidable Marriage (Section 11 & 12)

Divorce (Section 13)

Divorce by Mutual Consent (Section 13B)

The disputing parties in order to amicably resolve the dispute, assent to an agreement, specifying the consensus to the clauses relating to the dispute. As consent of both the parties is essential element in such agreement, the agreement signed by parties during conciliation or matter pendency before the court is known as consent note or signing on consent terms. The court may pass a decree based on mutually agreed provisions, which may be referred as consent order.

In India, disputes and matters have often led to an agreement between the parties, abating the burden of expensive litigation in courts and making the process of settlement less cumbersome. Thus, consent note or terms signed by both the parties, has proved to be a holistic solution to the marital affairs and disputes, and an effective resolution tool