Divorce by Mutual Consent

With the fast paced lifestyle and growing socio – economic changes divorce rates are soaring and ultimately leading to further issues such as child custody, alimony, etc, divorce is a stage wherein marriage is legally dissolved by a court or competent body. The Hindu Marriage Act, 1955 was amended in 1976 to include this provision of divorce by mutual consent, in order to make the process of divorce less cumbersome and time consuming. Divorce by mutual consent is thus the quickest way of obtaining a divorce in India.

The people of India practice different religions and hence are governed under separate marriage laws. Eventually the law for divorce also differs. The Hindu Marriage Act, 1955 covers those people who are practicing Hindu religion. Hence, Jains, Sikhs, Buddhists and Hindu seek divorce under this Act. The Special Marriage Act, 1956 and NRI Marriage Act govern people who belong to different castes and communities. Personal Laws of Divorce, Dissolution of Marriage Act, 1939 and The Muslim Women (Protection of Rights on Divorce) Act, 1986 govern spouses who belong to Muslim community. Indian Divorce Act-1869 and The Indian Christian Marriage Act, 1872 governs spouses practicing Christianity. The Parsi Marriage & Divorce Act-1936, with amendments in 1988 governs spouses who belong to the Parsi community.

Types of Divorce in India 

       
  • Contested Divorce: A contested divorce is defined as a situation wherein the parties fail to arrive at a mutual agreement and approach the court to resolve their contested divorce dispute. The divorce is contested under the provisions stipulated under the act namely physical & mental torture, impotency, unstable state of mind, adultery, desertion, cruelty, mental disorder, etc.   
  • Divorce by mutual consent: Divorce by mutual consent is defined as a situation where in both spouses have mutually and amicably agreed to mutually dissolve their marriage as they have not been living together and that the best way to seek a solution for this is divorce without issuing any allegations against one another in the court of law. In such a scenario, the petition for filing divorce is jointly presented before the court if and only if both  spouses have been:   
  • Living separately for more than one year   
  • Not living together   
  • Mutually agreed to dissolve the marriage 

Moreover, in addition to divorce the couples need to mutually agree to the terms relating to issues pertaining to child custody, alimony and maintenance.

A petition for Mutual Consent Divorce can be filed under different legislations provided herein below subject to the following:   

  • Section 13B of the Hindu Marriage Act, 1955 (applicable to all Hindus, Jains, Sikhs) mandates a period of separation of 1 year ,
  • Section 28 of the Special Marriage Act, 1954 ( applicable to all marriages between parties belonging to different religions, castes, NRI’s etc) mandates a period of separation of more than one year,   
  • Section 10 A of the Indian Divorce Act for Christian Couples mandates a period of separation of two years. 

Points to be considered before going ahead with Divorce by Mutual Consent

Before heading forward to file the petition for Divorce by Mutual Consent, it is advisable to mutually get certain things clarified between the parties by putting them in writing in order  to avoid any future discrepancies. Since the divorce is amicable and mutually applied for by both  parties, it is very essential to mutually decide upon solving issues pertaining to child custody, child maintenance, joint property, alimony, other joint assets, and many more.  Since these issues emerge to be a hindrance for couples, it is advised to clearly document all the terms and conditions well in writing to safeguard against any dispute in the future.

Requirements/Conditions for obtaining Divorce by Mutual Consent

Section 13B of the Hindu Marriages Act, 1955 states that in order to seek divorce by mutual consent both parties are required to present a petition to the district court for dissolving their marriage on the grounds that they have been living separately for more than one year, that they are not in a situation to live together and that they have mutually agreed and decided to dissolve their marriage.

Section 28 of the Special Marriages Act, 1954 in case of court marriage states that in order to seek divorce by mutual consent both parties need to present a petition to the district court for dissolving their marriage on the grounds that they have been living separately for more than one year, that they are not in a situation to live together and that they have mutually agreed and decided to dissolve their marriage.

The Indian Divorce Act 1869 in case of Christian couple states that in order to seek divorce by mutual consent both parties need to present a petition for dissolving their marriage to the district court on the grounds that they have been living separately for more than one year, that they are not in a situation to live together and that they have mutually agreed and decided to dissolve their marriage.

In addition to this, either of the parties should not adhere to non compatibility or non reconciliation at the time of seeking divorce by mutual consent. Also either of the parties should not use force or coercion to seek divorce by mutual consent.

Procedure for seeking divorce by mutual consent:

The procedure for seeking divorce by mutual consent goes through three stages namely: 

       
  • First Motion: In First motion stage, both parties need to be present in person before the court. It is a mandatory step in order to proceed for divorce by mutual consent. Absence of either of the parties will not be entertained and hence will be dealt accordingly. A joint petition is duly signed by both parties and filed in court. In addition to this, the first motion statement of both parties is recorded and thereby signed before the court.
  • Mediation/Reconciliation: After the first motion statement is recorded, the court has the right to send the parties for reconciliation or mediation for duration of 6 months. However, the Supreme Court has the power to waive off the cooling period of 6 months and proceed with second motion. The court sends the reconciliation report to corroborate the stand of the parties.  
  • Second Motion: In second motion, the parties are required to be physically present in court to get the final verdict. It is a mandatory requirement wherein a decree is passed in order to seek divorce by mutual consent. The divorce decree passed by the court in second motion is final and non-appealable. 

Withdrawal of petition before second motion:

The Indian Law allows the parties to withdraw their petition for seeking divorce by mutual consent. If either of the parties’ desires to withdraw then in such a scenario:   

  • The withdrawing party should submit the application for withdrawing their consent for seeking divorce and desire to save the marriage.   
  • The withdrawing party should not sign the documents for divorce by mutual consent.   
  • The withdrawing party can remain absent in second motion. In such a case, the court cannot pass the decree for divorce by mutual consent and the proceeding will be dismissed.   
  • Moreover, the second motion can be put off for a maximum period of 18 months. 

Transfer Petition in Supreme Court

The Supreme Court, being the highest court of appeal in the country is empowered under section 25 of Code of Civil Procedure, 1908 under its original jurisdiction power to transfer the petition in issues pertaining to divorce by mutual consent.

In case the marriage is registered in one city but divorce by mutual consent is being filed in another city:

If the marriage is registered in one city but the divorce is being filed in another city then being a divorce by mutual consent the petition must be filed in the jurisdiction of the residing place of both parties. Both parties need to submit their proof of residence which should be accepted by the court. In addition to this, the parties need to submit:   

  1. Proof of Marriage – Marriage Certificate issued by Registrar of Marriages or Photograph of Marriage Ceremony, wedding card etc.   
  2. Identity Proof of both parties (Passport, Voter’s Card, Ration card, Official Identity Card issued by Government etc).   
  3. Passport size photographs of both parties to be affixed on the Joint Petition for divorce by mutual consent under section 13B of the Hindu Marriage Act, 1955.
  4.    
  5. Joint Statement of both taken on first date of hearing/first motion, to be signed by both and their finger impression taken.
  6.    
  7. Copy of any mutually agreed agreement between the parties with regard to the custody of child or the issue of permanent alimony/maintenance should also be placed in court case file, otherwise these two issues and the issue of Stridhan/property of the wife should be clearly mentioned in the joint petition. 

In case the marriage is registered in India but both  parties are overseas:If the marriage has been taken place in India and registered under the Hindu Marriage Act in India then both parties (irrespective of being overseas or settled overseas) can only file their petition for divorce by mutual consent in India.  The parties would have to travel to India to appear before the court in the first and second motion in person for the initiation and finalization of divorce.

Foreign couple desirous of filing for divorce by mutual consent in India would need to provide evidence of their residency status in India for filing for divorce in India.

Conclusion:

Divorce by mutual consent is the quickest way to obtain divorce. Since it is obtained with a pure intention of seeking divorce mutually, it ultimately benefits the parties to a great extent. Being a mutual decision, both parties cooperate with each other throughout the process and hence it prevents wastage of time and energy. It also prevents the parties from wasting their money in fighting the case against one another. This further maintains the personal, professional and social image of both spouses and brings peace for both of them.

Seeking divorce by mutual consent will eventually minimize the hassles and difficulties faced by couples in comparison to a contested divorce and further simplify the process for both parties. However, it is important for both parties to make sure that all the terms and conditions are clarified mutually in writing and that there is no discrepancy and issues post seeking divorce by mutual consent.

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