Mutual Divorce in India

Legal Definition of Mutual Divorce

When both husband and wife agree to separate with their own will and mutual understanding, it is called Mutual Consent Divorce. In this kind of Divorce, both the husband and wife make the decisions regarding ending of the marriage, custody of child, finances and property, alimony and maintenance etc. It can be said that Mutual Divorce is the most civilized way of terminating marriage in India. It is a more peaceful method and saves time, energy and money.

Step by Step Procedure to File for Mutual Divorce

Step 1 - Filing of the Joint Petition in the Family Court : Both the parties, with their mutual consent, file a joint petition for dissolution of marriage in the Family Court of appropriate jurisdiction. The ground taken could be that the parties have been unable to reconcile differences and are not able to live together. This petition is required to be signed by both husband and wife. It is an essential ingredient that the spouses have been living separately for a period of one year or more.

Step 2 - Appearance for First Motion for Mutual Divorce : Appearance of the parties is entered, along with that of their respective counsels. The Family Court Judge examines the contents of the petition and may try to reconcile the differences between the husband and wife. However, if this does not seem possible, the Mutual Divorce case proceeds further.

Step 3 - Joint Statement : After scrutinizing the petition and documents, the Court orders the joint statement of the parties to be recorded on oath. This is signed by both the parties and the First Motion is passed.

Step 4 - Appearance for Second Motion for Mutual Divorce : If, after six months from the initial motion or by the conclusion of the reconciliation period, both parties still do not agree to reconcile, they may proceed to the second motion for the final hearing. This involves the parties presenting themselves and providing statements before the court. A recent Supreme Court judgment explicitly states that the six-month period is not obligatory and can be omitted at the court's discretion. Failure to initiate the second motion within 18 months will result in the court not granting the divorce decree. Furthermore, according to the section and established legal principles, it is evident that either party can withdraw their consent before the decree is issued.

Step 5 - Decision of the Court - Court Decision: The key factor for the court to grant a divorce by mutual consent is the voluntary agreement of both parties. Put differently, unless there is a full agreement between the husband and wife regarding the termination of the marriage, and the court is entirely convinced, it cannot issue a decree for divorce by mutual consent. The court makes decisions based on the statements provided by the parties and the specific facts and circumstances of the cases. Subsequently, the court issues the divorce decree, and at that point, the divorce is finalized.

Mutual Divorce

Grounds for Mutual Divorce

There are no specific grounds for mutual divorce, unlike for contested divorce. However, mutual divorce may be sought on the spouses’ inability to reconcile differences between them and that the parties live separately and are unable to live together. It is an essential ingredient for Mutual Divorce, that the parties have lived separately for 1 year before filing the petition.

Documents Required For Mutual Divorce In India

The necessary documents for a divorce by mutual consent include:
1. Address proof for the husband
2. Address proof for the wife
3. Information about the professions and current earnings of both husband and wife
4. Marriage certificate
5. Family background details
6. Photographs depicting the marriage of the husband and wife
7. Evidence confirming that the couple has been living apart for over one year
8. Proof of unsuccessful attempts at reconciliation
9. Income tax statements
10. Details regarding the parties' property and assets
Additionally, other specific documents may be required based on the particulars of each case.

Mutual Divorce In Hindu Marriage

Mutual divorce proceedings for Hindus are regulated by Section 13B of the Hindu Marriage Act, 1955. To initiate a Mutual Divorce under this section, the following conditions must be met:

1. The parties must have lived separately for at least one year.
2. Reconciliation or adjustment attempts have proven unsuccessful, and cohabitation is no longer feasible.
3. Both parties must consent to the dissolution of the marriage.

Additionally, either party can withdraw the divorce petition within six months from the date of its submission.

The divorce case is filed in the appropriate family court, and the process starts with a joint petition signed by both parties. The petition includes a statement acknowledging irreparable differences as the reason for seeking divorce. Both parties must appear in the family court, and after scrutiny of the petition, their statements are recorded.

The mutual divorce under Hindu law involves two motions. After recording the statements, the court issues the first motion order, followed by a 6-month period during which the parties file the second motion. This must be done within 18 months from the date of the first motion petition. Either party can withdraw their consent before the passing of the decree. Once the court is satisfied that irreconcilable differences exist and divorce is the best resolution, it issues a final decree of divorce, marking the conclusion of the divorce process.

Mutual Divorce In Christian Marriage

The provision for divorce among Christians in India is outlined in the Divorce Act, 1869. Section 10A of the Act specifically allows for the dissolution of marriage through mutual consent. Both parties can jointly file a petition for mutual divorce in the appropriate district court. The grounds for the petition should be based on the fact that the parties have lived separately for over a year, making it impractical for them to cohabit, and that the decision to end the marriage has been mutually agreed upon.

It is possible to withdraw this petition after 6 months from the date of its submission but before the expiration of 18 months from the same date.

Mutual Divorce In Parsi Marriage

The regulations concerning marriage and divorce for Parsis in India are outlined in the Parsi Marriage and Divorce Act, 1936. Section 32B of the Act specifically addresses Divorce by Mutual Consent, allowing both the husband and wife to jointly seek mutual divorce on the basis that they have lived separately for one year or more, and reconciliation has proven unfeasible. They are required to express their mutual agreement to dissolve the marriage. It is important to note that a suit under this section cannot be initiated until one year has passed since the date of the marriage.

Mutual Divorce In Muslim marriage

In Muslim law, divorce is categorized as judicial or extrajudicial, with Mutual Divorce falling under the extra-judicial category. The rationale behind this classification is the belief that since divorce is an act of the parties involved, court intervention is unnecessary. Khula and Mubarat represent two forms of mutual divorce or agreement.

Khula: This type of mutual divorce is considered an agreement between the husband and wife to terminate the marriage, with the wife offering a portion of her property to the husband as compensation. While actual delivery is not obligatory for the divorce's validity, the consideration remains a crucial aspect of the Khula system. Once the husband consents, an irrevocable divorce occurs, and the husband cannot annul the khula if the consideration remains unpaid.

Mubarat: In this form of divorce, both the husband and wife must mutually desire the divorce, and the proposal for divorce can come from either side. Once an offer is made, the other party must accept it for the divorce to become irrevocable.

There are variations for Sunnis and Shias within this divorce framework. For Sunnis, entering into mubarat concludes the rights and obligations of the parties. In contrast, for Shias, a specific form is required, with the word "Mubarat" needing to be followed by the word "Talaq" for the divorce to be effective. These words must be expressed in Arabic, and the intention to dissolve the marriage must be clearly stated.

Mutual Divorce under Special Marriage Act

Section 28 of the Special Marriage Act 1954 addresses Divorce by mutual consent for marriages solemnized under the Special Marriage Act.

According to Section 28, a petition for the dissolution of marriage through a divorce decree can be jointly presented to the district court by both parties in the marriage. The section outlines the specific grounds on which such a petition can be filed in court:
1. Both the husband and wife must have been living separately for a period of one year or more.
2. They must have been unable to live together.
3. They must have mutually agreed that the marriage should be dissolved.

These conditions are explicitly stated under Section 28 of the Special Marriage Act, and all of them are mandatory prerequisites for filing a petition for the dissolution of marriage in court.

If any of the mentioned grounds are omitted from the petition seeking the dissolution of marriage, the court has the authority to reject such a petition.

Advantages of Mutual Divorce

Opting for a mutual consent divorce helps in eliminating unnecessary disputes and conserves significant time and financial resources. Given the increasing frequency of divorce filings, mutual consent divorce emerges as one of the most favorable choices. It stands out as the swiftest method of obtaining a divorce, resulting in substantial cost and mental stress savings. Moreover, it empowers the involved parties to independently determine crucial matters like child custody, maintenance, and other significant issues. Consequently, it represents the most straightforward form of divorce, undeniably more cost-effective and time-efficient when compared to a contested divorce.

Rules for Mutual Divorce in India

In India, mutual divorce is mostly regulated by the Hindu Marriage Act, 1955, and the Special Marriage Act, 1954. The provisions governing mutual divorce are consistent across both acts. The latest law on mutual divorce in India includes the following key points:

1. Mutual divorce can be pursued only after one year of marriage, as specified in Section 13B of the Hindu Marriage Act and Section 28 of the Special Marriage Act.

2. Both parties must mutually agree to the divorce, and it is a prerequisite that they have been residing separately for at least one year before initiating the petition.

3. The court has the authority to waive the six-month cooling-off period if it is satisfied that reconciliation between the parties is improbable. In the past, when couples chose mutual consent for divorce, the court mandated a 6-month period for them to consider the possibility of reconciliation. This was granted by the court with the aim of preserving the marriage. Following the conclusion of the 6-month period, the couple could either choose to reconcile or proceed with the divorce. However, under the new rule, the 6-month cooling-off period is no longer obligatory, and the court has the discretion to decide. Now, the court can determine, based on the facts and circumstances, whether a 6-month recuperation period is necessary or if the divorce can be granted immediately.

4. The court will assess the terms of the settlement agreed upon by the parties, covering aspects such as alimony, child custody, and the division of property.

5. In cases where a settlement cannot be reached, the court may order mediation to facilitate a mutually acceptable resolution.

6. The mutual divorce process is typically quicker and less adversarial than a contested divorce, often concluding within a few months.

Child Custody in Mutual Divorce

In the process of obtaining a divorce through mutual consent, the parties must reach an agreement on the issue of child custody, which involves determining the child's primary residence. The custodial parent assumes the role of the primary caregiver, responsible for addressing the child's medical, educational, and emotional needs.

Both parents are deemed equally capable of having custody. However, in this type of divorce, the parties must mutually decide on matters such as the physical custody arrangements, visitation duration, interim custody, and how the child's living and educational expenses will be covered. Joint custody is also an option, wherein one parent is the primary caregiver with physical custody, and both parents share legal custody.

The court places the child's best interests and welfare as paramount considerations in matters of child custody. Acting as the ‘parens patriae’, or ultimate guardian of the child, the court ensures the protection of the minor child's property and income by law. Additionally, the terms of custody, visitation, and child support can be modified if circumstances change or if it is in the best interest of the child.

Maintenance or Alimony in Mutual Divorce

Alimony holds significance in divorce proceedings. In instances of mutual divorce, the divorcing spouses must come to an agreement regarding the amount of alimony or maintenance, whether paid by the husband to the wife or vice versa.

When determining the alimony amount, various factors are taken into account, including the marriage duration, recipient's age, spouse's health, child custody, and the financial status of each party.

If the parties mutually decide that no alimony is necessary, there is no obligation to establish a specific amount. The law does not prescribe a maximum or minimum alimony figure, leaving it to the parties to reach an agreement. Typically, the agreed-upon sum is a gross or monthly amount, not surpassing the recipient's lifetime, and is influenced by the payer's assets and income.

In the case of Naveen Kohli vs. Neelu Kohli (2006), a noteworthy Supreme Court judgment addressed maintenance in mutual consent divorce cases. The court underscored the importance of ensuring that the settlement terms, particularly regarding maintenance, are fair and equitable. The court's role is to assess whether the settlement is just and reasonable, taking into consideration the financial capabilities of both parties.

Property Distribution in Mutual Divorce

Neither the husband, nor the wife have the right to another individual’s property at the time of mutual divorce. The parties can divide property amongst themselves if they are co-owners during the procedure of divorce. The spouses should reach an agreement and mutually and amicably decide property division at the time of mutual divorce.

Why Hire a Lawyer for Mutual Divorce

Going through a divorce is a challenging period for everyone involved. Opting for legal representation is a method to alleviate the stress associated with the divorce process. While the lawyer will require information from you about the case, they will also manage all the necessary paperwork, giving you more time to focus on yourself and your family. Relying on the expertise of an experienced divorce lawyer is extremely valuable.

For additional guidance, LawRato's Free Legal Advice service provides an opportunity to seek advice from seasoned divorce/matrimonial lawyers. A divorce lawyer, being well-versed in the laws, can offer expert assistance in avoiding significant errors that may lead to financial and other negative consequences which may even necessitate future legal proceedings for correction. Thus, engaging an divorce lawyer ensures a smoother process, minimizing delays and facilitating a hassle free and prompt mutual divorce.

Frequently Asked Questions (FAQs) on Mutual Consent Divorce

Q. Can mutual divorce be obtained immediately?
A. No, there is a prescribed procedure, including a recommended waiting period of 6-18 months after filing the first motion for divorce through mutual consent.

Q. Who is responsible for alimony in mutual divorce?
A. The responsibility for alimony in mutual divorce is determined by mutual agreement between the husband and wife. They decide whether one of them will pay alimony/maintenance to the other.

Q. Can the court reject mutual divorce in India?
A. Yes, depending on the specific facts and circumstances of the case.

Q. Can mutual divorce be finalized in 3 months?
A. Generally, mutual divorce takes longer than 3 months as the second motion requires a time period of 6-18 months.

Q. What is the cost of mutual divorce in India?
A. The cost of mutual divorce varies based on factors such as the complexity of issues like maintenance, custody, and properties, the choice of lawyer, and the time taken for the court to pass the divorce decree.

Q. What are the rules for mutual divorce?
A. The requirements for filing a mutual divorce petition are outlined in Section 13 B, including joint filing, a mandatory one-year separation, mutual agreement to dissolve the marriage, and a 6-month cooling-off period.

Q. How long does mutual divorce take?
A. Typically, mutual divorce may take around 6-24 months, though the duration is not fixed and can vary based on the specifics of each case.

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

Q. What happens if one spouse disagrees with mutual divorce?
A. If one spouse disagrees, the other can file a contested or one-sided divorce in court.

Q. Can divorce be obtained without going to court in India?
A. No, only a court of law can officially grant a divorce decree and dissolve a marriage.

Q. Where should the divorce case be filed?
A. The divorce case should be filed in the family court of the city where both partners last lived together or where the marriage was solemnized.

Q. Can a Mutual Consent Divorce decree be obtained through a notary?
A. No, mutual divorce cannot be granted through a notary; it requires a valid decree from the family court.

Q. Can a party withdraw the petition for Divorce by Mutual Consent?
A. During the six-month period between the first and second motions, either party can withdraw the petition, leading to the option of filing for a contested divorce, or else retaining the marriage.

Q. Is the appearance of parties necessary for obtaining a Divorce by Mutual Consent decree?
A. In most cases, parties must be present during the first and second motions, although camera proceedings may be allowed in rare cases.

Q. How can NRIs get a Mutual Divorce?
A. NRIs can file a divorce petition in a foreign country where they reside, ensuring the foreign decree aligns with Section 13 of the Civil Procedure Code, 1908.

Q. What happens if mutual consent is obtained by force or coercion?
A. The court must ensure that consent is not obtained maliciously. If obtained through force or coercion, the aggrieved party can appeal to nullify the decree.

Q. Is the statutory cooling-off period of six months mandatory?
A. No, the court has the authority to waive the six-month cooling-off period if it deems fit.

Q. Can a party remarry without getting a divorce?
A. No, remarrying without obtaining a divorce is a punishable offense with a potential 7 years imprisonment.

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