What is the procedure for mutual consent divorce


Hi, I would like to know the procedure for mutual divorce procedure in case of husband(christian) and wife(hindu) being of different religion and also if we have not registered our marriage.

Answers (4)


153 votes
Since you and your spouse belong to different religions you shall be covered under the provisions of Special Marriage Act.

Section 28 of the Act,  primarily deals with the provisions relating to obtaining a divorce by mutual consent in respect of a marriage solemnized and/or registered under the Act, a petition for divorce by mutual consent may be presented to the District Court.

A few key points to be considered while seeking a divorce by mutual consent are as follows:

1. A petition for divorce must be presented to the District Court by both parties together.
2. The petition must be on the grounds:
 
  • that they have been living separately for a period of one year or more,
  • that they have not been able to live together, and
  • that they have mutually agreed that the marriage should be dissolved.

3. The petition may be presented only after one year from the date of entering the certificate of marriage in the Marriage Certificate Book. However, relaxation may be provided in cases where exceptional hardship is suffered by the petitioner or in cases of exceptional depravity on the part of the respondent.

4. The petition seeking divorce by mutual consent could be presented to a District Court, within whose jurisdiction, either,
 
  • the marriage was solemnized,
  • the respondent resides, or in case the wife is the petitioner, where she is residing,
  • the parties to the marriage last resided together, or
  • the petitioner resides, in cases where the respondent is residing outside the territories to which the Act extends.

5. Between 6 months after, and within 18 months of, the date of presentation of the petition seeking divorce by mutual consent, both parties must make a motion together seeking the grant of a decree of divorce.

6. Before passing a decree of divorce, the District Court considers the following, among other aspects:
 
  • that the petition has not been withdrawn yet,
  • that a marriage has been solemnized under the Act,
  • that the averments in the petition are true,
  • that consent for divorce has not been obtained by force, fraud or undue influence
  • that there has not been any unnecessary or improper delay in instituting the proceedings.


Thus, the provisions and the procedure for obtaining a divorce by mutual consent under the Special Marriage Act are fairly simple and straight forward.

Parties desirous of obtaining a divorce by mutual consent must, however, keep in mind that the Act also contains provisions dealing with the grant of alimony and maintenance, both permanent and during the pendency of the proceedings.

In the cases of divorce by mutual consent, the parties may agree upon the terms relating to payment of alimony or maintenance and the same may be incorporated in the pleadings before the Court.

However, care has to be taken that suitable provisions are incorporated in the pleadings to avoid future misunderstandings or litigation. It is, therefore, advisable that, while discussing the various issues connected with seeking a divorce by mutual consent with their advocates, the parties must specifically discuss their arrangement and agreement on alimony and maintenance, and take suitable steps to ensure that their interest is safeguarded.

253 votes

Section 10A of the Divorce Act, 1869 provides for dissolution of marriage by mutual consent. A petition for dissolution of marriage can be filed before a District Court y both the parties. The pre-condition is that that parties should have been living separately for two years or more. First motion is usually recorded on the first date, followed by second motion, recorded after a gap of at least 6 months (and not later than 18months).


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302 votes

Marriage registertion is not required for divorce, only solemnised of marriage is necessary in you their is special marriage so don't worry procedure same as HMA law provisions. Their till different only

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189 votes

This little bit difficult as the marriage is falls under the special marriage act and for the purpose of divorce there is a separation period of two years in case where special marriage act applies and then only you can go for a mutual divorce

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