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Divorce by Mutual Consent in India | Procedure & Documents

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February 23, 2024
By Advocate Chikirsha Mohanty



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What is Mutual Consent Divorce?

Mutual Consent Divorce or Divorce by Mutual Consent or Mutual Understanding Divorce is a situation where both spouses mutually agree that it is impossible for them to cohabit and that the best solution is for them to go for divorce. A mutual divorce agreement is required petition is jointly presented before the Court without putting forth any allegations against each other. Read more about how to take divorce mutually in India, the mutual divorce process in India, and mutual divorce time in this blog. [1] [2]

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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. It is important to note that every case is unique, and even a slight change may result in different scenarios. Therefore, LawRato helps you connect to top-ranking advocates in your city.  You can avail of such features by visiting our website or by a simple click here .


What are the requirements to be complied with for a Mutual Consent Divorce?

1. Living Separately Under the Same Roof: 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. [3]?

Complete Guide to Mutual Divorce

In the case of Amardeep Singh vs. Harveen Kaur (2017), the Supreme Court of India clarified that the parties can be considered to be living separately even if they are residing under the same roof, provided they do not share a common household and have separated their finances and responsibilities.

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

In the case of Naveen Kohli vs. Neelu Kohli (2006), the Supreme Court held that if it is demonstrated that there is no possibility of reconciliation or cohabitation between the spouses, it satisfies the requirement for a mutual consent divorce.

3. Freely Consented Agreement: The parties have freely consented to the agreement of dissolution of marriage.

In the case of Sureshta Devi vs. Om Prakash (1991), the Supreme Court emphasized that consent for divorce must be voluntary and not obtained by coercion, fraud, or undue influence. The consent should be free from any external pressure.

4. Right to Withdraw the Petition:  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 the 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.

The provision for withdrawal of the petition was discussed in the case of Amardeep Singh vs. Harveen Kaur (2017) as well. It was noted that while either party can withdraw the petition within six months, after that period, both parties must file a joint motion for withdrawal.

If you are not sure that you qualify for Mutual Consent Divorce, then Talk To A Lawyer , or get Free Legal Advice From Top Rated Lawyers at LawRato.

Consult: Top Divorce Lawyers in India

 



Mutual Divorce Process in India

There are several steps involved in order to get a divorce by mutual consent. The  mutual divorce process 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. [3]

2. Appearance of Both Parties in Court:

The second step of the procedure is the appearance of both 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]

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 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. [3]

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. [3]

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-month 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. [3]

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. [3]

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What information/ documents are required for Mutual Consent Divorce?

The following documents would be required for a divorce by mutual consent: [4]

  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.


?It might be a case where you do have all the required documents. In this uncertainty, LawRato provides Free Legal Advice and the facility to contact top-ranking divorce lawyers in your city .

Consult:  Top Divorce Lawyers in India
 



Mutual Divorce Petition Form - Click here to download

A mutual petition form is a legal document that is filed by a married couple who mutually agree to divorce. The form must be filed in the family court of the state where the couple is married. The form must include the following information:

  • The names of the spouses

  • The date of the marriage

  • The date of separation

  • The reasons for the divorce

  • The terms of the divorce, such as child custody, alimony, and property division

Download Mutual Divorce Petition Format



Divorce law under different religions in India

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. [9]

‘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. [9]

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 come to 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. [9]

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.

Complete Guide to Mutual Divorce


Mutual Divorce Cases Under Muslim Law

  • Shayara Bano v. Union of India (2017): In this landmark case, the Indian Supreme Court declared the practice of instant triple talaq (Talaq-e-Bid'ah) unconstitutional and void. While this case primarily focused on the issue of triple talaq, it highlights the importance of judicial intervention in matters of divorce in Muslim Law.

  • Farooq Siddiqui v. Mst. Khurshid Fatima (1980): This case involved a dispute over a khula divorce where the wife sought a divorce from her husband by offering compensation. The court recognized the validity of khula divorce and enforced the terms of the agreement between the husband and wife.

  • Shabana Bano v. Imran Khan (2010): This case involved a mubarat divorce where both the husband and wife mutually agreed to dissolve their marriage. The court upheld the legality of the mubarat divorce and emphasized that both parties must willingly agree to the divorce for it to be valid.

  • Danial Latifi v. Union of India (2001): This case addressed the issue of maintenance in the context of Muslim divorce. The Supreme Court ruled that a Muslim husband is obligated to provide maintenance to his divorced wife even after the iddat period if she is unable to support herself

  • Aafreen Rehman v. Muhammad Abdul Basit (2018): In this case, the wife sought a khula divorce from her husband. The court recognized the validity of khula as a form of divorce under Muslim Law and upheld the wife's right to seek divorce through this means.

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. [10]

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The mutual divorce process in some of the major cities in India

Mutual Divorce Process in Delhi:

  • Average Processing Time: 6 to 12 Months

  • Average Cost: 50,000

  • ?Courts: Family Court, Saket, Delhi; Tis Hazari, Delhi; Dwarka, Delhi; Rohini, Delhi; Karkardooma, Delhi


Mutual Divorce Process in Mumbai:
  • Average Processing Time: 6 to 12 Months

  • Average Cost: 60,000

  • Courts: Family Court, Bandra, Mumbai; Borivali, Mumbai; Andheri, Mumbai; Dindoshi, Mumbai; Kurla, Mumbai


Mutual Divorce Process in Chennai:
  • Average Processing Time: 8 to 14 Months

  • Average Cost: 40,000

  • Courts: Family Court, Chennai; Egmore, Chennai; George Town, Chennai; T Nagar, Chennai; Saidapet, Chennai


Mutual Divorce Process in Kolkata:
  • Average Processing Time: 12 to 18 Months

  • Average Cost: 30,000

  • Courts: District Court, Kolkata; Family Court, Alipore, Kolkata; Barasat, Kolkata; Sealdah, Kolkata; Howrah, Kolkata


It is important to mention that the above-mentioned process is subject to the practice and complexity of your case. Therefore, before you start planning, talk to a lawyer and discuss your case. Get a clear idea of your case and the process involved. This will enable you to be well-prepared. For all this, you can refer to LawRato’s Divorce Law Guides and Articles .



What are the New Rules for Divorce in India 2023?

Laws relating to divorce are updated and amended frequently to ease the process of divorce. Here are the new laws on divorce in India-

  1. Supreme Court Eases Divorce Proceedings, 2020
    The Supreme Court has stated that the 6-month waiting period for divorce under Section-13B(2) of the Hindu Marriage Act, 1955 is not mandatory but discretionary, giving lower courts the direction to speed up divorce if both husband and wife agree to settle their differences. This decision was taken to enable parties to have better options if there are no chances of reunion and if there are chances of fresh rehabilitation. The cooling-off period is in place to ensure that the decision taken by the parties is not hurried and that they consider all the chances of reconciliation.

  2. Provisions for Maintenance Under the Hindu Marriage Act, 1955
    Maintenance is governed under several sections of the Hindu Marriage Act, 1955 the Hindu Adoption and Maintenance Act, 1956 and the Code of Criminal Procedure, 1973. Section 24 of the Hindu Marriage Act allows either spouse to get paid for the expenses of legal proceedings under the Act. Section 25 allows the court to direct the respondent to pay maintenance in the form of a monthly payment or an entire sum for a time not exceeding the life of the applicant. [6] 

  3. Irretrievable Breakdown Theory of Marriage, 2001
    The “Irretrievable Breakdown Theory” of Marriage came into effect after the Law Commission and the Supreme Court recommended adding it as a valid ground for divorce under Section 13 of the Hindu Marriage Act. It was stated that the pragmatic reality of life must be accepted, and a decision should be taken that would ultimately be conducive to the common betterment of both spouses. [7]

  4. Marriage Laws Amendment Act 2013
    The Marriage Laws (Amendment) Act, 2013 can be a boon in terms of maintenance, as it entitles wives to the husband’s share of immovable property that he acquired in the course of their marriage in cases of irretrievable breakdown of the marriage. However, this benefit is only restricted to cases of ‘irretrievable breakdown of marriage’ and not in other cases of divorce.

  5. Triple Talaq Declared Unconstitutional
    The Supreme Court has ruled that triple talaq is unconstitutional and violates the fundamental rights of Muslim women. The responsibility to pass the Triple Talaq Bill and come out with a law to regulate marriage and divorce laws among Muslims in India now lies with the centre.

  6. Adultery is No Longer a Punishable Offence, 2018
    Section 497 of the IPC, which made adultery a punishable offence for men, was declared unconstitutional and struck down by the Supreme Court. It was held that punishing the person who committed adultery is arbitrary and that Section 497 was regressive, as it considered a woman as a 'property' or chattel of man/husband.

  7. Changes in the Christian Divorce Laws, 2021
    The Supreme Court has held that any Christian couple seeking divorce will have to mandatorily procure a divorce from a civil court. The divorce granted by the ecclesiastical tribunal under Christian personal law is not valid, and any couple seeking divorce will have to follow the civil court's procedure.
     



What are the New Rules for Mutual Divorce in India 2023?

Mutual divorce in India is governed by the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954. The provisions for mutual divorce are the same for both acts. Here are some key points regarding the latest law on mutual divorce in India:

  1. Mutual divorce can be sought only after one year of marriage under Section 13B of the Hindu Marriage Act and Section 28 of the Special Marriage Act. [8]

  2. Both parties must mutually agree to the divorce, and it must be established that they have been living separately for at least one year before filing the petition. [8]

  3. The court may allow a waiver of the cooling-off period of six months if it is convinced that there is no chance of reconciliation between the parties. [8]

  4. The court will also consider the terms of the settlement reached by the parties with respect to issues like alimony, child custody, and division of property. [8]

  5. If the parties are unable to reach a settlement, the court may order mediation to facilitate a mutually agreed-upon settlement. [8]

  6. The process of mutual divorce is generally faster and less adversarial than a contested divorce, and it can be completed in a few months. [8]



What are the advantages of Divorce by Mutual Consent?

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 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 issues.  Thus, it is the easiest form of divorce and certainly less expensive and time-consuming as compared to a contested divorce.  [5]

Maintenance in the case of a Mutual Consent 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 the 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 the 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.

1. Naveen Kohli vs. Neelu Kohli (2006): In this significant Supreme Court judgment, the court discussed the issue of maintenance in mutual consent divorce cases. It emphasized that the court should ensure that the terms of the settlement are fair and equitable, especially with regard to the payment of maintenance. The court's role is to examine whether the settlement is just and reasonable, considering the financial capacity of the parties.

2. Chaturbhuj vs. Sita Bai (2008): In this case, the Supreme Court held that while deciding the quantum of maintenance in a mutual consent divorce, the courts should consider the income, assets, and financial capacity of both parties. The award of maintenance should be reasonable and not excessive.

3. Savitri Pandey vs. Prem Chandra Pandey (2002): In this judgment, the Supreme Court emphasized that in mutual consent divorce cases, the court should ensure that the settlement agreement, including provisions for maintenance, is not one-sided or unfair to either party. It should be just and equitable.

4. Manish Jain vs. Akanksha Jain (2017): In this case, the Delhi High Court addressed the issue of maintenance in a mutual divorce case and emphasized the need for a fair and balanced settlement. The court stated that while parties have the freedom to agree on the terms, including maintenance, the court should ensure that the agreement is not manifestly unjust.

5. Kirtikant D. Vadodaria vs. State of Gujarat (2010): In this judgment, the Gujarat High Court discussed the importance of ensuring that the terms of a mutual consent divorce settlement, including maintenance, are not oppressive or prejudicial to either party. The court should scrutinize the agreement to prevent any injustice.



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 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 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 parents 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 Mutual Divorce?

A Memorandum of Understanding (MOU) or Settlement Agreement is what initiates a Divorce proceeding between a husband and wife. An MOU is a mutual settlement documented and signed by both parties, acting as proof of agreed-upon terms during Mutual Divorce.
However, a MOU is while non-binding and acts as evidential documentation of terms between the parties involved. This agreement can further evolve into a legally binding Separation Agreement when endorsed and notarized by both parties.
Key Components Covered in the MOU Include:

  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 hamper 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



How can a Lawyer help you?

Divorce is a stressful time for everyone involved. Hiring a Lawyer to complete a divorce is one way to reduce the stress of the divorce. While the Lawyer 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 lawyer 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 a lawyer, a person can make sure that he can avoid delay and get the divorce completed as quickly as possible.



Frequently Asked Questions (FAQs) on Divorce by Mutual Consent

Q.1 Can we get mutual divorce immediately?

A. No, you cannot get a mutual divorce immediately. The law in India mandates a cooling off period of 6-18 months when the first application for a divorce by mutual consent is filed.

Q.2 Who pays alimony in mutual divorce?

A. Payment of alimony in mutual divorce depends upon the parties themselves. The husband and wife have the authority to determine mutually, whether one of them will be responsible to pay to the other, a sum of alimony/maintenance.

Q.3 Can court reject mutual divorce in India?

A. Yes, depending upon the facts and circumstances of the case.

Q.4 Can mutual divorce be done in 3 months?

A. Generally, mutual divorce takes longer than 3 months since the second motion requires a time period of 6-18 months.

Q.5 What is the cost of mutual divorce in India?

A. Cost of mutual divorce depends from case to case. The complexity of the issues such as maintenance, custody, properties, etc. involved, the kind of lawyer hired and the time taken fir divorce decree to be passed by the court.

Q.6 What are the rules for mutual divorce?

A. Certain ingredients are stated in Section 13 B to file a mutual divorce petition. These include:

a. Joint filing of the petition

b. Mandatory period of one year of spouses living separately

c. Mutual agreement to dissolve the marriage

d. 6 months cooling-off period, etc.

Q.7 How long does mutual divorce take?
A. The duration is usually 6-18 months to get a mutual divorce. However, it may vary depending on the number of cases pending in the court and on the court where it has been filed.

Q.8 What are the benefits of mutual divorce?
A. Mutual divorce offers reduced time, expenses and emotional trauma as compared to contested divorce.

Q.9 What happens if your wife or husband doesn't agree for mutual divorce?
A. If one spouse does not agree for mutual divorce, the other spouse has an option to file a contested or a one-sided divorce in the court of law.

Q.10 Can I get divorce without going to court in India?
A. No, only a court of law can pass an official decree of divorce and dissolve a marriage.

Q. 11 Where to file the Divorce case? 
A. The parties are required to file for divorce in the family court of the city where both 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.

Q.12 Can a Mutual Consent Divorce decree be obtained through a notary?
A. 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.

Q. 13 Can a party withdraw the petition for Divorce by Mutual Consent? 
A. 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 is missing for a period of more than 7 months. 

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Q. 14 Is the appearance of parties necessary for obtaining a Divorce by Mutual Consent decree?

A. 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.  

Q.15 How can NRIs get a Mutual Divorce?
A. 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.  

Q.16 What happens when mutual consent is obtained by force or coercion?
A. It is the duty of the court to ensure 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. 

Q. 17 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.

Q. 18 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. 

Q. 19 Can a wife claim maintenance after mutual consent divorce if the parties have agreed on a lump sum amount as a final settlement?

A. 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. 
 

____________________________________________
References:

  • [1] Hindu Marriage Act, 1955, Section 13B - https://highcourtchd.gov.in/hclscc/subpages/pdf_files/4.pdf?
  • [2] Special Marriage Act, 1954, Section 28.- https://en.wikipedia.org/wiki/Special_Marriage_Act,_1954
  • [3] Procedure for Divorce - https://lawrato.com/divorce-legal-advice/procedure-to-file-for-mutual-divorce-100754
  • [4] Documents for Mutual Divorce - https://lawrato.com/divorce-legal-advice/what-are-documents-require-while-filing-mutual-consent-divorce-120624
  • [5] Advantages & Disadvantages of Mutual Divorce - https://lawrato.com/divorce-legal-advice/advantages-and-disadvantages-of-mutual-consent-divorce-64625
  • [6] Hindu Marriage Act - https://lawrato.com/indian-kanoon/hindu-marriage-act
  • [7] Irretrievable Breakdown of Marriage in India - https://lawrato.com/indian-kanoon/divorce-law/irretrievable-breakdown-of-marriage-in-india-2974
  • [8] New Rules in Divorce 2023 - https://lawrato.com/indian-kanoon/divorce-law/new-rules-in-divorce-laws-1733
  • [9] Divorce in Muslim Law - https://lawrato.com/indian-kanoon/divorce-law/divorce-laws-for-muslims-in-india-2976
  • [10] Divorce in Parsi Law - https://en.wikipedia.org/wiki/Parsi_law




Property Dispute

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Comments by Users


Jyoti
Can I gt divorce??if my wife said yes in first motion of mutual divore but now saying no fr second motion ?? I want divorce wht should I do?

Reply by LawRato
In India, mutual divorce is a legal process through which a married couple can legally end their marriage by mutual agreement. To obtain a mutual divorce, both parties must agree to the divorce and must file a joint petition for divorce with the court. If one party changes their mind and decides that they no longer want to proceed with the divorce, it can be more difficult to obtain the divorce.

If your wife has changed her mind and is refusing to proceed with the divorce, you may need to consider other options for obtaining a divorce. You can file for a contested divorce on the grounds of cruelty, adultery, desertion etc. You can also seek judicial separation which allows you and your wife to live separately while remaining legally married. The process for obtaining a divorce in India can be complex and requires the assistance of a lawyer. It is advisable to take the help of a lawyer for you understand your options and to guide you through the process of obtaining a divorce.

Jyoti
How much dates I can get in court aftr giving my first statement aftr 6months how many dates I can hve??

Reply by LawRato
Since your question is very specific and requires more information in order to guide you better, it is advised that you click on the link below and send in your query for Free Legal Advice. 

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Shilpa
my lawyer filed execution petition for my interim maintainance but didn't mention about imprisonment if failed to pay..can we plead the judge to take such actions coz he is stubborn to pay a penny

Reply by LawRato
It is difficult to answer your query without more information on your case. It is therefore advised that you click on the link below and send in your detailed query for Free Legal Advice. 

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Alternatively, you can consult another lawyer by clicking on the link below

Top Divorce Lawyers in India

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.

Sankar
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.

Pradeep
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.

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

Priyanka
Yes, the divorce can be revoked

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

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User Reviews


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Gave me a very clear idea of the subject.

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very good article. Can you tell me more about the law?

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good work

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Written in a very simple language.

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Nicely written article. Very comprehensive.

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Thanks for the detailed article.

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good legal subject

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good article. Can you give some more detail on the issue.

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A well written article.

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good article. Please provide more info

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how to contact a lawyer for my legal case?

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needed some more information on the subject.

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nice work with the article.

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Had a good time reading the article.

Shailendra on Feb 21, 2024
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great legal advice

Megha on Jan 20, 2024
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good advice. Who can I contact for my legal issue?

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needed a lawyer….what is the procedure?

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Good work with the article.

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