Divorce by Mutual Consent in India

  • Divorce is a process which legally ends a marriage and mutual divorce is the simplest way to end your marriage. In a mutual divorce, parties agree mutually to separate and dissolve the marriage. Owing to this mutual divorce saves a significant time, and money as opposed to a contested divorce. Further, it is also easier to file for mutual divorce. A provision has been provided under Section 13B of The Hindu Marriage Act, 1955 for divorce by mutual consent which has some conditions which must be fulfilled by the parties to be granted a divorce.

    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 are:
    (a) 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 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.
    (b) The parties have failed for any reason whatsoever to live together. In other' words, no reconciliation or adjustment is possible between them.
    (c) The parties have freely consented to the agreement of dissolution of marriage.
    (d) 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 It seems that the petition may be withdrawn even at the instance of one party in course of six months from the date of presentation of the petition.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.

    Advantage 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. 

    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 religion 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 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 divorce
    To remarry,
    getting 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
    getmutual 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?
    In case if the consent for mutual divorce is obtained through force or coercion, it is the duty of the court to examine if the consent is not viciously obtained. If the court fails to determine if the consent was given freely or not then such a divorce decree cannot be regarded as a decree by mutual consent. The aggrieved party can file an appeal to struck 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? 
    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 husband as the case may be.    

    How is child custody decided in divorce matters?
    obtainingdivorce through mutual consent the parties are required to settle the issue of child custody. The spouse can opt for joint custody. Under this arrangement, one of the parent has the physical custody of the children and both of them have legal custody of the child. 

    What is the time taken in getting a divorce decree?
    The entire process from the date of filing till getting the divorce can take around six months to one year. 

    What if one party does not consent?
    At the same time, there have been a lot of cases that come up when not all couples agree on the desirability, the grounds or the conditions for the divorce which in turn creates a trouble for the partner that is willing to start and file the petition.


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

    These articles are provided freely as general guides. While we do our best to make sure these guides are helpful, we do not give any guarantee that they are accurate or appropriate to your situation, or take any responsibility for any loss their use might cause you. Do not rely on information provided here without seeking experienced legal advice first. If in doubt, please always consult a lawyer.

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