Mutual Divorce Procedure in india

What is Mutual Consent Divorce?

Mutual Consent Divorce, also known as Divorce by Mutual Consent, occurs when both spouses agree that cohabitation is impossible. In this case, the best resolution is to pursue a divorce. A mutual divorce petition is filed jointly before the Court, without making any allegations against each other.

For example, if the husband and wife have lived separately for one year or more and have both acknowledged that the marriage has irreparably broken down, they may be granted a divorce.
 

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. Let us look into how to file for mutual divorce and the important steps involved:
 

1. Filing a Joint Petition:

The first step is for both parties to file a joint petition with the family court. This petition must be signed by both parties. It should outline the irreconcilable differences leading to the divorce. The petition also includes agreements on asset division and child custody.
 

2. Appearance of Both Parties in Court:

The second step involves both parties appearing in family court after the petition is filed. The court schedules this appearance. Both parties must attend with their legal counsel.
 

3. Scrutiny of the Petition by Court:

After both parties appear, the court will review the filed documents. The court may request the parties to record statements under oath if necessary. The court may also attempt reconciliation between the parties. If reconciliation is unsuccessful, the divorce proceedings will continue.
 

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

Once the parties' statements are recorded, the court will issue an order on the first motion for divorce. A waiting period of six months is then imposed. After this period, the parties must file a second motion. This second motion must occur within 18 months from the initial petition filing.
 

5. Appearing for Second Motion:

After six months from the first motion or at the conclusion of the reconciliation period, if both parties do not reach an agreement, they may proceed to a second motion for final hearing. This hearing requires both parties to appear and record their statements before the court. The recent judgment by the Supreme Court clarifies that the six-month period is not mandatory and may be waived at the court's discretion. If the second motion is not filed within 18 months, the court will not issue the divorce decree. Moreover, it is established in law that either party may withdraw their consent at any point before the decree is granted.
 

6. Decision of the Court:

A key requirement for granting a divorce by mutual consent is the free consent of both parties. The court must find an agreement between the husband and wife for marriage dissolution. Only then can a decree for divorce by mutual consent be issued. The court will consider the statements and the specific circumstances of the case before making its decision. Once the decree is granted, the divorce is finalized.
 

What information/ documents are required for Mutual Consent 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

Mutual Divorce Petition Form 

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

Mutual Divorce law under different religions in India

1. Mutual Divorce under Muslim Law :

Under Muslim Law, divorce is classified into two categories: Judicial and extra-judicial. Mutual Divorce is an extra-judicial form of divorce. There are two types of mutual divorce: khula' and Mubarat. In both khula' and Mubarat, the woman is required to forfeit her dower or another form of property.
 

2. Mutual Divorce under Christian Law :

Divorce for Christians in India is governed by the Divorce Act of 1869. Section 10 A allows for the dissolution of marriage by mutual consent. Both parties may present a petition for mutual divorce to the appropriate district court. The petition must state that the parties have been living separately for over one year. It should also indicate that cohabitation is not possible. Additionally, the petition must confirm that both parties have mutually agreed to dissolve the marriage.
 

3. Mutual Divorce under Parsi Law :

The Parsi Marriage and Divorce Act, 1936 governs marriage and divorce for Parsis in India. Divorce by Mutual Consent is addressed in Section 32B. This section permits both the husband and wife to jointly file for mutual divorce. The grounds for such a filing include living separately for a period of one year or more and an inability to cohabit. Both parties must indicate their mutual agreement to dissolve the marriage. A suit under this section cannot be filed until one year has passed since the date of the marriage.
 

How is child custody and support decided in Divorce matters?

In a divorce by mutual consent, the parties must settle child custody matters. Custody defines where the child will physically reside. The custodial parent is responsible for the child's medical, educational, and emotional needs.

Both parents are qualified to seek custody. However, they must mutually agree on several considerations. These include who will have physical custody, the duration of visitation rights, interim custody, and how to cover the child’s living and educational expenses. Parents may also choose joint custody. In this scenario, one parent has physical custody while both share legal custody.

The court prioritizes the child’s best interests and welfare in custody decisions. The court acts as parens patriae, serving as the ultimate guardian for the child. Laws exist to protect the minor child’s property and income. Additionally, custody terms, access, and child support may be modified if circumstances change or if it serves the child’s best interests.

Consult:  Top Divorce Lawyers in India

How can a Lawyer help you?

Divorce is a challenging process for all parties involved. Hiring a lawyer can help alleviate some of this stress. The lawyer will gather necessary information regarding the case. Additionally, the lawyer will handle all paperwork. This arrangement allows you to focus on your well-being and that of your family. An experienced divorce lawyer offers valuable advice based on years of expertise in similar cases. You also have access to LawRato's Free Legal Advice service for complimentary consultations with matrimonial lawyers. A divorce lawyer possesses specialized knowledge of the law. This expertise can help you avoid significant mistakes that may result in financial loss or require future legal action to rectify. Therefore, engaging a lawyer can facilitate a more efficient and timely divorce process.
 

FAQs on Mutual Divorce

1. Understanding Mutual Divorce

What is mutual divorce?
Mutual divorce is a process where both spouses agree to dissolve their marriage amicably and jointly file for divorce in court.

What does mutual consent divorce mean?
Mutual consent divorce refers to a divorce proceeding where both parties mutually agree to end their marriage without contesting any issues.

What is the legal provision for mutual consent divorce in India?
In India, mutual consent divorce is governed by Section 13B of the Hindu Marriage Act, 1955.


2. Conditions and Grounds for Mutual Divorce

What are the conditions for obtaining a mutual divorce in India?
The key conditions include living separately for at least one year, mutual agreement to dissolve the marriage, and an amicable settlement of issues like alimony, child custody, etc.

What are the grounds for mutual divorce?
The primary ground is mutual agreement between the spouses to end the marriage. Additional grounds can include unresolved differences, lack of compatibility, and more.

What are the reasons commonly cited for mutual divorce?
Common reasons include irreconcilable differences, lack of communication, financial issues, and personal incompatibility.

3. Procedure for Mutual Divorce

How to apply for mutual divorce in India?
To apply for mutual divorce, both spouses must file a joint petition in the family court where they reside, citing that they have been living separately for over a year and have mutually agreed to divorce.

What documents are required for mutual divorce?
Documents required include a joint divorce petition, marriage certificate, photographs, ID proofs, address proofs, income details, and any agreement related to child custody or alimony.

How long does a mutual divorce take in India?
Typically, the process takes 6 to 18 months, depending on factors like court procedures and the mandatory waiting period between the first and second motions.

What is the process for filing a mutual consent divorce petition?
The process involves filing a joint petition, attending a court hearing for the first motion, waiting for a six-month cooling-off period, and then appearing for the second motion to finalize the divorce.

4. Legal Rules and Regulations

What are the latest rules for mutual divorce in India?
Recent changes may include faster resolution processes and optional waiving of the six-month waiting period under certain conditions, depending on court discretion.

Is it possible to get a mutual divorce without going to court in India?
No, mutual divorce requires a court process. Both spouses must appear in court for hearings, though some formalities may be completed online in certain jurisdictions.

What happens if one spouse doesn’t appear for the second motion in a mutual divorce?
If one spouse does not appear, the court may dismiss the case or grant an extension. However, the divorce cannot be finalized without both spouses' consent.

5. Practical Considerations

How much does a mutual divorce cost in India?
Costs can vary based on legal fees, court fees, and any settlement amounts agreed upon for alimony or child support. On average, it can range from INR 15,000 to INR 50,000.

What are the steps involved in obtaining a mutual divorce?
The steps include consulting a lawyer, filing the joint petition, attending court hearings, waiting for the cooling-off period, and finalizing the divorce in the second motion.

Can mutual divorce be obtained immediately?
Generally, mutual divorce cannot be immediate due to the mandatory waiting period, but in rare cases, the court may expedite the process.

6. Special Cases

How is child custody decided in a mutual divorce?
Child custody is typically decided based on mutual agreement between the spouses and is subject to court approval, focusing on the best interests of the child.

What happens after a mutual divorce?
After the divorce is granted, both spouses are legally separated and free to remarry. They must comply with any terms agreed upon regarding alimony, child custody, or property division.

Is mutual divorce easier if both parties agree?
Yes, mutual divorce is generally quicker and less contentious when both parties agree on the terms, making it one of the more straightforward forms of divorce in India.

7. Language-Specific Information

What is the meaning of mutual divorce in Telugu?
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Advocate Chikirsha Mohanty

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