Divorce by Mutual Consent in India

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September 26, 2022
By Advocate Chikirsha Mohanty

What is Mutual Divorce?

Divorce by Mutual Consent or Mutual Divorce is when both husband and wife mutually agree that they cannot live together anymore and that the best solution beingDivorce, they would present a Mutual Divorce petition jointly before the honorable court, without putting forth any allegations against each other.

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For instance, if the husband and wife have been living separately for a period of one year or more and are further unable to live together, and both have mutually agreed that the marriage has totally collapsed, they can be granted a divorce.

Research says that one of the fastest ways of being granted a divorce in India is through mutual consent as other options linger on for too long. The law says that all marriages which have been solemnized before or after the Marriage Laws (Amendment) Act 1976 can be annulled, provided the parties to marriage consent for the same in front of the court.

Requirements to be complied with for a Mutual Divorce:

1. The parties have been living separately for a period of not less than one year. It is doubtful whether it was intended by the legislators that the parties have lived separately by mutual consent or by force of circumstances or situation. But it does not seem necessary for the court to go into that matter, provided the condition of separate living under the same roof of the matrimonial home or in separate residence by the parties is satisfied. Unless the consent of any of the parties to such petition is vitiated by coercion, fraud, or undue influence, the court ought not to travel beyond the statutory condition of its jurisdiction.

2. The parties have failed for any reason whatsoever to live together. In other words, no reconciliation or adjustment is possible between them.

3. The parties have freely consented to the agreement of dissolution of marriage.

4. The parties are at liberty to withdraw the petition. It seems that the petition may be withdrawn even at the instance of one party in course of six months from the date of presentation of the petition. But when a joint motion is taken by the parties after the lapse of six months but before the expiry of eighteen months from the date of presentation of the petition for making an inquiry, the unilateral right of a party to withdraw the petition appears to be barred.

Consult: Top Divorce Lawyers in India

How to File forMutual Consent Divorce:

There are several steps involved in order to get a divorce by mutual consent. The procedure of mutual divorce in India generally begins with the filing of a petition as has been given under Section 13B of the Hindu Marriage Act. There are also two motions involved in this procedure. The following are the important steps:

1. Filing a Joint Petition:

The first step is the filing of a joint petition in the respective family court. This joint petition is to be signed by both parties. The divorce petition contains a joint statement by both the partners, that due to their irreconcilable differences, they can no longer stay together and should be granted a divorce. This statement also has the agreement to split the assets, custody of children, etc.

2. Appearance of Both Parties in Court:

The second step of the procedure is the appearance of both the parties to the divorce in the family court after the petition has been filed. The court fixes this date and the parties appear along with their counsels.

3.Scrutiny of the Petition by Court:

The court thereafter scrutinizes the petition and the documents filed by the parties. When and if the court is satisfied, it orders for the recording of statements of the parties on oath. In some cases, the court attempts to bring about reconciliation between the parties. When there is a failure to reconcile the parties, the divorce matter is proceeded with.

4.Recording of statement and passing of the order on First Motion:

After the statements of the parties have been recorded on oath, an order on the first motion is passed by the court. After this, a 6-month period is given to the parties, after which the parties are required to file the second motion. This has to be filed within a period of 18 months from the date of the filing of the petition for the first motion.

5.Appearing for Second Motion:

After 6 months of the first motion or by the end of the reconciliation period, if both parties still don't agree to come together, then the parties may appear for the second motion for the final hearing. This also involves the parties appearing and recording statements before the court. In a recent judgment, the Supreme Court has categorically stated that the six months period is not mandatory and can be waived off depending upon the discretion of the court. If the second motion is not made within the period of 18 months, then the court will not pass the decree of the divorce. Besides, according to the section, as well as the settled law, it is clear that one of the parties may withdraw their consent at any time before the passing of the decree.

6.Decision of the Court:

The most important requirement for a grant of divorce by mutual consent is the free consent of both parties. In other words, unless there is a complete agreement between the husband and the wife for the dissolution of the marriage and unless the court is completely satisfied, it cannot grant a decree for divorce by mutual consent. Upon the basis of the statements as recorded by the parties and upon the basis of the particular facts and circumstances of the cases, the court gives the appropriate orders and dissolves the marriage. The court then passes the decree of divorce and now the divorce becomes final.

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What information/documents/materials are required for Mutual Divorce?

The following documents would be required for a divorce by mutual consent:

  1. Address proof of husband

  2. Address proof of wife

  3. Details of professions and present earnings of husband and wife

  4. Certificate of Marriage

  5. Family background information

  6. Photographs of marriage between husband and wife

  7. Evidence to prove that the husband and wife have been living separately for more than one year

  8. Evidence proving failed attempts of reconciliation

  9. Income tax statements

  10. Details of property and assets of the parties

  11. Certain other documents may also be required, depending upon the facts and circumstances of the particular case.

Consult: Top Divorce Lawyers in India

Advantages of Mutual Divorce

Taking a mutual consent divorce removes unnecessary quarrels and saves a lot of time and monetary resources. With the ever-rising number of applications being filed for divorce, mutual consent divorce is one of the best-given options. It is the quickest form of Divorce and thus saves a lot of money and even mental stress. Not only this, the parties have it in their own hands to decide on sensitive issues such as child custody, maintenance, and any other important issue. Thus, it is the easiest form of divorce and certainly less expensive and time taking as compared to a contested divorce.

FAQs on Mutual Divorce

Where to file the Divorce case?

The parties are required to file for divorce in the family court of the city where both the partners lived together for the last time, i.e. their matrimonial home. It can even be presented in the court of the city/place where the marriage was solemnized.

How long does it take to get a decree of Divorce by Mutual Consent in India?

The average timeline of the entire process, from the date of filing to getting the divorce decree can be around six months to two years. However, it can take longer, depending upon the nature of the particular case. No set time can be stated as each case is different and independent of the other. Keeping that in mind, however, mutual divorce has been seen to be the leasttime taking as compared to other procedures of divorce.

Can Mutual Divorce decree be obtained through a notary?

No, mutual divorce cannot be granted through a notary in India. A valid decree of divorce can only be granted by the family court of appropriate jurisdiction.

Can a party withdraw the petition for Divorce?

During the six-month period or time gap between the first motion and the second motion, either of the parties can withdraw by filing an application before the court, stating that they do not intend to get a divorce through mutual consent. In such a circumstance the other party would only have one option -to file for a contested divorce. A contested divorce can be filed on any of the following grounds cruelty, desertion, voluntary sexual intercourse with another person, unsound mind, conversion of religion by other spouses, leprosy, venereal disease, a spouse having renounced the world, or being missing for a period of more than 7 months.

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Can a party remarry without getting a Divorce?

To remarry, getting a divorce is a pre-condition. If you remarry without getting a divorce then it is a punishable offense with 7 years imprisonment.

Is the appearance of parties necessary for obtaining a Divorce decree?

In most cases, parties are required to be present before the court during the first and second motions. Only in rare cases, camera proceedings may be allowed where the courts are convinced that the attendance of the party in question cannot be arranged by all possible means and it is totally at the discretion of the court to allow it.

How can NRIs get a Mutual Divorce?

In case of divorce of an NRI couple, they can file a divorce petition in a foreign country under the laws where the party currently resides. It is imperative that the decree by foreign courts should not be inconclusive of section 13 of the Civil Procedure Code, 1908. In fact, if the divorce petition is filed in India where one of the parties is staying abroad then the court may permit camera proceedings.

What happens when mutual consent is obtained by force or coercion?

It is the duty of the court to examine that the consent is not viciously obtained. If the court fails to determine whether the consent was given freely or not, then such a divorce decree cannot be regarded as a decree by mutual consent. In case the consent for mutual divorce is obtained through force or coercion, the aggrieved partycan file an appeal to strike down such a decree.

Is the statutory cooling-off period of six months mandatory?

No, the statutory cooling-off period of six months is not mandatory. If the court deems fit, then it can waive off this cooling period. This implies that if the couple has mutually decided to dissolve their marriage, they can request the court to expedite the process and not wait for another six months.

Consult: Top Divorce Lawyers in India

How is the issue of maintenance tackled in case of a Mutual Divorce?

Alimony is an important aspect in matters of divorce proceedings. In cases of mutual divorce, the divorcing husband and the wife are required to agree on the sum of alimony or maintenance which will be given either by the husband to the wife or wife to the husband as the case may be.

While deciding the amount of alimony, factors such as the duration of the marriage, age of the recipient, health of spouse, child custody, financial position of either spouse, etc. are taken into consideration.

In case the parties mutually agree that there is no requirement to pay any alimony, it is not compulsory for the parties to decide the quantum to be paid. No maximum or minimum amount of alimony has been set by law, hence, it is upon the parties to agree upon a particular sum. It is generally decided as a gross sum, or a monthly amount, not exceeding the life of the receiver, giving regard to the payer’s own property and income.

How is child custody and support decided in Divorce matters?

While obtaining a divorce through mutual consent, the parties are required to settle the issue of child custody. Custody of the child implies as to who the child will physically reside with. The custodial parent would be the primary caretaker and would thereby be responsible for the medical, educational, and emotional needs of the child.

Both the parents are equally competent to take custody of the children. However, in this kind of divorce, the parties need to mutually agree upon matters such as - who would have the physical custody of the child, the duration of visitation rights, the interim custody, and how the child’s living and educational costs will be met, etc. The spouse can even opt for joint custody. Under this arrangement, one of the parents would be the primary caretaker and thus have the physical custody of the child, and both of them would have the legal custody of the child.

The court regards the interest and welfare of the child as paramount considerations in matters of child custody. The court is the parens patriae i.e. the ultimate guardian of the child and hence the minor child’s property/income is protected by law. Moreover, the terms of custody, access, and child support can be changed in case the circumstances are altered, or in the best interest of the child.

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What is MOU / Settlement Agreement for Divorce?

A memorandum of Understanding or Settlement Agreement can be said to be the basis upon which the Husband and Wife take Divorce. An MOU is a mutual settlement that has been written down on paper and signed between the two parties. This MOU can act as documentary proof of terms accepted between the husband and wife at the time of Mutual Divorce.

Generally, MOUs are used as a part of several agreements, partnerships, settlements, divorces, companies, etc. Since Mutual Divorce is a kind of Settlement, an MOU should be entered into between the parties to Mutual Divorce.

However, it is important to note that an “MOU” is non-binding but may act as proof of terms decided between two parties. A Settlement Agreement based upon the MOU can also be entered into between the parties. This Separation Agreement when signed by both the parties and notarised becomes legally binding. Terms regarding the following topics can be added as a part of the MOU:

  1. The mutual understanding on the basis of which both husband and wife are getting divorced,

  2. Settlement of maintenance and alimony issues- who pays to whom and how much,

  3. Child custody issues; with whom does the child stay, who has the visitation rights, whether it is joint custody or not, etc.

  4. Duties and Liabilities of the husband and wife towards children,

  5. Any other condition relating to properties, children, maintenance, separation, etc.

It is important to have an MOU in mutual divorce since it is not a one-sided or contested divorce and the parties should settle alimony/maintenance and child custody matters mutually between them. Some reasons why an MOU should be created are stated below:

  1. It helps in ensuring that future litigations do not arise. However, the minutest details should be mentioned in the MOU.

  2. Clear terms are set out in writing for future references, which will lead to less confusion in the future,

  3. The rights, liabilities, assets and debts, and other claims of the parties are clearly demarcated in the MOU

  4. Claims of maintenance and alimony as mutually decided are clearly mentioned and the increase or decrease in such alimony/maintenance in probable future scenarios are also stated therein, thus, ensuring future complications do not arise.

  5. In case of breach of the terms mentioned, the parties can sue each other for breach of contract.

  6. Frivolous litigations for child custody cause extra burdens and hampers the well-being of the child. Thus, if terms regarding custody are mentioned clearly, the burden of future litigations is reduced to a huge extent.

  7. MOU may also safeguard the interest of the husband from false allegations of domestic violence and cases of Section 498A.

  8. Specific performance according to MoU can also be enforced by the aggrieved party if the other party has failed to perform the acts and liabilities mentioned in the MOU.

    Consult: Top Divorce Lawyers in India

Can a wife claim maintenance after mutual consent divorce if the parties have agreed on a lump sum amount as a final settlement?

Recently, the question of whether a wife can claim maintenance after the marriage has been dissolved by a divorce decree and the payment of a lump sum amount has been made to the wife in the form of a full and final settlement for maintenance came up before the Calcutta High Court. The legal issue here was what would be the procedure adopted if the marriage between the parties was dissolved and the wife received a lump sum amount as a one-time payment for maintenance. The matter, however, still remains undecided because of the different views of the High court.

In Nirmal Kumar Jana v. The State, the Calcutta High Court stated that a wife would not be entitled to maintenance in such a case since she gives up the claim to maintenance once she receives a lump sum amount as final settlement. In another case of the Calcutta High Court, Laxmikanta Panja v. Susoma Rani Panja, it was held that a compromise between the parties does not bind either of them and hence, the wife shall be entitled to the claim of maintenance.

Therefore, in the absence of a well-settled law on the matter, it cannot be said whether a wife, who, after receiving a lump sum amount as final payment after mutual consent divorce, is entitled to maintenance.

Is the Divorce law different for different religions in India?

Yes, like marriage laws, divorce laws are also different for different religions. Divorce for Hindus iscoveredby Hindu Marriage Act, 1955. This includes Sikhs, Jains, and Buddhists. Christians are governed by Indian Divorce Act, 1869. Muslims are governed by the Personal laws of divorce and Dissolution of Marriage Act, 1939 and the Muslim Women ( Protection of Rights on Divorce) Act, 1986. For inter-religion marriages, there is a secular law, the Special Marriage Act, of 1954. The following list explains mutual divorce in different religions:

1. Mutual Divorce under Muslim Law :

Under Muslim Law, there are two categories of divorce - ‘judicial’ and extra-judicial. Mutual Divorce under Muslim Law falls under the extra-judicial category. There are two kinds of divorce by a mutual agreement called ‘khula’ and ‘Mubarat’. Under both these kinds of mutual divorce, the woman is to part with her ‘dower’ or some other property.

‘Khula’ under Muslim Law is said to be an agreement between the husband and wife for dissolving a union in lieu of compensation (part of her property) that is paid by the wife to her husband. Even though this consideration is important, the actual delivery of property is not a precondition for the validity of the divorce under the ‘khula’ system. An irrevocable divorce takes place once the husband gives his consent, and the husband has no right to cancel the ‘khul’ on the ground of consideration not having been paid.

Under the ‘mubarat’ form of mutual divorce, both the parties must desire a divorce, and thus the proposal for it can emanate from either wife or husband. Both these parties should be willing to separate. Once the offer is made, the other party must accept it, and once it is accepted, the divorce becomes irrevocable. Under the Sunnis, once the husband and wife enter into a ‘mubarat’, all the rights and obligations of the parties cometo an end. In Shias, a proper form is imposed, i.e. the word ‘mubarat’ should be followed by the word ‘talaq’ for the divorce to take place. These words should be uttered in Arabic, and the intention to end the marriage should be expressed clearly.

In both ‘Khula’ and ‘Mubarat’, the wife shall go through the ‘iddat’ period and in both, a divorce is an act of the parties, and no intervention by the court is required.

2. Mutual Divorce under Christian Law :

Divorce for Christians in India is provided for under the Divorce Act, 1869. Section 10 A of the Act gives the provision for dissolution of marriage by mutual consent. A petition for mutual divorce can be presented by both parties to the appropriate district court. The petition should be presented upon the grounds that the parties have been living separately for more than a year and that it is not possible for them to cohabit together and that the decision to dissolve the marriage has been mutually agreed upon.

This petition can be withdrawn after the expiry of 6 months from the date of the presentation of the petition but before a lapse of 18 months from this date.

3. Mutual Divorce under Parsi Law :

Provisions for marriage and divorce for Parsis in India are given in the Parsi Marriage and Divorce Act, 1936. Divorce by Mutual Consent is given under Section 32B. It states that both the husband and wife can together file for mutual divorce upon the ground that they have been living separately for a period of one year or more, and that they have not been able to live together. They have to mention that they mutually agree that the marriage should be dissolved. However, a suit under this section cannot be filed, unless one year has elapsed since the date of the marriage.

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How can a Lawyer help you?

Divorce is a stressful time for everyone involved. Hiring an attorney to complete a divorce is one way to reduce the stress of the divorce. While the attorney will need to gather information from you regarding the case, he or she will also take care of all the paperwork, allowing you more time to take care of yourself and your family. An experienced divorce attorney can give you expert advice on how to handle your divorce owing to his years of experience in handling such cases. You can also use LawRato's Free Legal Advice service to get free advice on your case from expert divorce/matrimonial lawyers.A divorce lawyer is an expert on the laws and can help you avoid significant mistakes that may cause financial harm or will require future legal proceedings to correct. Thus, by hiring an attorney a person can make sure that he can avoid delay and get the divorce completed as quickly as possible.








Comments by Users

JC Sharma
This is a fantastic article. It gives a very good idea to the beginner . Rarely we find such useful information and that also free of cost. Hearty congratulations to the writer and the group.

Hello, we filed a mutual consent for my sister. Now after six months he is saying he won't give the divorce and threating us like he will inform to judge that he is not giving. What should we do now?

Reply by LawRato
In a Divorce by mutual consent, both the parties have the freedom to withdraw their consent as the consent cannot be taken by coercion. In your case husband has withdrawn the consent so it is advisable to file for contested divorce if you still want to get divorced.

rahul soni
hi we r getting mutual divorce our first moyion is done but now my wife is asking too much money what can i do

Reply by LawRato
While awarding the final settlement amount, or alimony, the court considers many factors before proceeding with the order. The income of the spouse, their financial status and the standard of living, financial needs, and their investments and net worth are all taken into account. It is not always mandatory that a spouse (especially a wife) is awarded a final settlement by the court. However, if your wife is demanding a large amount in compensation, you can always contest her claim by emphasizing the abovementioned factors and pleading to the court that it takes your financial status into account. It is advised that you consult a divorce lawyer for your concerns.

If the wife has more money/assets (without doing job) than husband, then is it mandatory to give lum sum amount or final settlement amount ?

Reply by LawRato
While awarding the final settlement amount, or alimony, the court considers many factors before proceeding with the order. The income of the spouse, their financial status and the standard of living, financial needs, and their investments and net worth. It is not always mandatory that a spouse (especially a wife) is awarded a final settlement by the court. It is advised that you consult a divorce lawyer for your concerns.

what is agreed under mutual consent, by when those terms should be completed like returning money or valuable

Yes, the divorce can be revoked

Is there any chance to cancel the mutual divorce in future by husband or wife.

These guides are not legal advice, nor a substitute for a lawyer
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