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Divorce by Mutual Consent in India

November 23, 2018
By Advocate Chikirsha Mohanty



What is Mutual Divorce?

As the name suggests, mutual divorce means divorce by mutual consent of the parties. This signifies that both the parties agree for peaceful separation. Under Section 13B of the Hindu Marriage Act, 1955, parties can seek such divorce by filing a petition before the appropriate court.

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 the 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 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 It seems that the petition may be withdrawn even at the instance of one party in course of six months from the date of presentation of the petition.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 inquiry, the unilateral right of a party to withdraw the petition appears to be barred.

 

Process of Mutual Divorce:

There are two court appearances in a mutual divorce proceeding. A joint petition signed by both parties is filed in the respective family court. 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.

In the first motion, statement of both parties are recorded and then signed on paper before the Hon'ble Court. After this, a 6 month period is given for reconciliation, (the Hon'ble court gives a chance to the couple to change their mind)

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.

In a recent judgement, 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, from the language of 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. 

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 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. In the final steps, a Divorce decree will be granted as the Hon'ble Court may deem fit.


 

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.
 

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.


What information/documents 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

  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

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

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 till 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 least time taking as compared to other procedures of divorce.

 

Can Mutual Divorce decree be obtained through notary?

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

Is Divorce law different for different religions in India?

Yes, like marriage laws, divorce laws are also different for different religions. Divorce for Hindus are governed by Hindu Marriage Act, 1955. This includes Sikhs, Jain and Buddhist. Christians are governed by Indian Divorce Act, 1869. Muslims are governed by 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, Special Marriage Act, 1954. 
 

Can a party withdraw the petition for Divorce? 

During the six month period or time gap between 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 contested divorce. A contested divorce can be filed on any of the following grounds like cruelty, desertion, voluntary sexual inter-course with another person, unsound mind, conversion of religion by other spouse, leprosy, venereal disease, a spouse having renounced the world or being missing for a period of more than 7 months.  
 

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 offence with 7 years imprisonment. 
 

Is appearance of parties necessary for obtaining Divorce decree?

In most cases, parties are required to be present before the court during first and second motion. 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 on 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. Infact, if the divorce petition is filed in India where one of the parties is staying abroad then the court may permit for 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 party can file an appeal to strike down such a decree. 
 

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

No, the statutory cooling off period for 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.
 

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 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 the 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, 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.
 

Can Contested Divorce be Converted to Mutual Divorce?



 

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