Mutual Divorce: Divorce by Mutual Consent in India

Posted by Nidhi Kumari
November 9, 2017

Self-Published

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 simpler 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 quickest methods for being allowed a divorce in India is through mutual consent as different alternatives wait on for a really long time. The law says that all marriages which have been solemnized earlier or after the Marriage Laws (Amendment) Act 1976 can be revoked given the gatherings to marriage assent for the same before the court.

Requirements to be complied with for a Mutual Divorce are:

(a) The parties have been living independently for a period of not less than one year. It is dubious 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.

(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. The petition may be withdrawn even at the instance of one party in course of six months from the date of presentation of the petition.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 the inquiry, the unilateral right of a party to withdraw the petition appears to be barred. In a recent directive issued by the Supreme Court, the couple may mutually waive off this six month period.  

The 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 compromises of a joint statement by both the partners, that due to their conflicting 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 is 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 judgment, 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. It is very clear from the language of the section, as well as the settled law, that one of the parties may withdraw their consent at any time before the passing of the decree. The essential condition 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. Filing for a mutual consent divorce helps one evade ugly and unnecessary quarrels and saves a lot of time and money.

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.

The Government of India is pondering over amendments to the Hindu Marriage Act to accommodate irretrievable breakdown of marriage and provide the divorce.

 

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