How to apply for mutual divorce and custody of my son

792 votes

A happy marriage is a harbour in the tempest of life an unhappy marriage a tempest in the harbour of life, more and more people are realising the reality of their relationships, and accepting divorce as the rational choice to a better life necessary premised on better relationships Divorce allows a person to break free from an onerous marital relationship. But since marriage is not merely a contract but a very important societal institution. The law has an interest in protecting marriage, and not allowing it to be severed only by choice and on ordinary wear and tear. Since society in countries like ours takes special interest in protecting it – In our country to get a divorce one needs to prove certain grounds for eg : cruelty/adultery/desertion etc. Known as matrimonial offences. Contested Divorce As per the law as it stands our legal system does not allow divorce to be granted on the ground of irretrievable breakdown of marriage or irreconcilable differences. To get a divorce one has to prove wrongdoing on the part of other spouse, and impeccable conduct of one’s own in order to win. Divorce is granted only on proof of fault or guilty conduct of one party and innocence of the other. The most common ground for divorce is cruelty. Another common ground is adultery (sexual intercourse outside wedlock) one instance of lapse of virtue can lead to divorce. Divorce by Mutual Consent is the easiest way to get a divorce, in this both parties work out their terms on which they agree to part ways- file petition in the court, which is finalised in 6 months. However there may be cases where the decision to part may not be a mutual one, and it is only one party who considers the union to be troublesome and worth getting rid off. Such situations lead to Divorce being contested. Divorce by Mutual Consent. 13 B Procedures in court • Section 13B of the HMA Act 1955 provides for divorce by mutual consent.(period of separation is 1 year) • Section 28 of the Special marriage Act, 1954 provides for divorce by mutual consent. • Section 10A of the Divorce Act, 1869, provides for divorce by mutual consent (period of separation is 2 years) Divorce by Mutual Consent is as the name suggests is when both parties ie; husband and wife comes to a mutual understanding that the marriage be dissolved amicably. It is clear that one of the parties may withdraw their consent at any time before the passing of the decree. The most important requirement for a grant of divorce by mutual consent is free consent of both the parties. In other words, unless there is a complete agreement between husband and wife for the dissolution of the marriage and unless the court is completely satisfied, it cannot grant a decree for divorce by mutual consent. The Conditions required under section 13B of the Hindu Marriage Act are as follows: (i) Husband and wife have been living separately for a period of one year or more, (ii) That they are unable to live together, (iii) And that both husband and wife have mutually agreed that the marriage has totally collapsed, hence marriage should be dissolved. Advantages of mutual divorce Divorce by Mutual consent saves time, money and energy for both, Leaves no room for unnecessary quarrel and most importantly avoid washing your dirty linen in public.

Advocate Ajay NS LawRato

843 votes

Mutual divorce, necessarily, involves the informed consent of both husband and wife. Has your wife reconciled to the situation? Your query is totally silent on this aspect. Even after separable, if unavoidable, you need to provide maintenance to your child. However, given the tender age, the custody would be granted to the mother. This is all the more so because, presently, you are abroad and the child is looked after by the mother.

Advocate P Venu LawRato

764 votes

Yes you can apply for divorce. If both of you wish for mutual divorce you can file the petition before the family court where you reside.You can demand for the custody of your child at the time of separation .If it doesn't work you can file a custody O P for the child.If your wife demands you supposed to pay the maintenance

Advocate Sindu R Kurup LawRato