Divorce Law Videos - Procedure for divorce with mutual consent

Under the Hindu Marriage Act, 1955 both the husband and the wife have been given a right to get their marriage dissolved by a decree of divorce on more than one grounds specifically enumerated in Section 13.
Section 13-B (divorce by mutual consent) makes provision for divorce by mutual consent on the ground that-

• Both the parties to the marriage have been living separately for a period of one year or more.
• They have not been able to live together.
• They have now mutually agreed for the dissolution of the marriage.

Couples might find incompatibility between them and might file for a petition of divorce by mutual consent. It is a novel approach but, at times, situation arises where divorce by mutual consent becomes difficult. e.g. Where a husband tries to bargain on the conditions of divorce or times where wife out of conspiracy marries a person and demands big price for giving divorce through mutual consent (mostly involved with cases of 498A).
Procedure to be followed for filing a petition of divorce by mutual consent-

• Both the parties need to file together a petition seeking divorce before the District court.
• Before filing of the petition, married couple should make sure that they are living separately for a period of one year or more. After petition is allowed, parties are required for filing of statement.

If any party is not available, any such family member of such party may file the statement on his behalf. Once this is done, ‘First motion’ is established.

• Couple seeking divorce by mutual consent will have to give reason why they are not able to live together and mention in the petition that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.
• Court after a period of 6 months and not more than 18 months (cooling-off period) will give a date for listening to the parties.

If the case is withdrawn or the parties do not move to court at the given date(s), the petition stands cancelled. After hearing to the parties and on being satisfied, court may pass a decree of divorce declaring the marriage to be dissolved.
Court is expected to confine its inquiry on the following aspects-

• Whether the marriage has been solemnized between the parties.
• Whether the parties have been living separately for more than a year before presenting the petition.
• Whether they were not able to live together at the time of presenting the petition and continue to live apart.
• Whether they had mutually agreed to dissolve the marriage before or at the time the petition was presented.
• Whether the averments made in the petition are true and conditions under section 23 are fulfilled.