Divorce by Mutual Consent

Family Law | Comments (0)

Like

“Divorce does not mean a failure; it is in fact a step towards self-realization and growth”

Ending of a marriage legally is divorce and the easiest and the least traumatizing way to get a divorce and dissolve the marriage which is not working for either of the spouses is by mutual consent.

The entire procedure of dissolution of marriage in India is initiated with a petition for divorce which is filled by either of the spouses associated with the divorce procedure with the notice of the same being served to the other one.

In a mutual consent divorce, the husband and wife mutually agree to separate and end the marriage. As a result, mutual divorce saves a lot of time as well as money in comparison to a contested divorce. In addition, it is also easier to file for a mutual consent divorce. Under Section- 13B of the Hindu Marriage Act, 1955, a provision has been provided for mutual consent divorce wherein certain conditions must be satisfied by the parties to get a divorce. In addition, Section- 28 of the Special Marriage Act, 1954 and Section- 10A of the Divorce Act, 1869, also cater to mutual consent divorce.


For instance, under the Hindu law if the aggrieved couple has been living separately for a period exceeding 1 year at least and if the couple is further unable to cohabit together, and both the spouses have mutually agreed that their marriage has completely collapsed, the court can grant divorce to the couple.

What are the requirements to remember in a mutual consent divorce?

  • The husband and wife must have been living separately for at least 1 year.
  • There must be no coercion, fraud or undue influence between the spouses and there must be free consent to get the mutual consent divorce.
  • There is no possibility of adjustment or reconciliation between the husband and wife.

What is the complete procedure to get a mutual consent divorce?

A mutual consent divorce is one way of minimizing the trauma of ending a marriage when the marriage gets dissolved with mutual respect between the couple with minimum bad blood between the couple and their families.

The entire mutual consent divorce procedure is as follows:

  • There are 2 mandatory appearances for the couple to be made in the Family Court in a mutual consent divorce proceeding.
  • In a mutual consent divorce, both the spouses act as Petitioners because both the spouses are in agreement to dissolve their marriage.
  • The first step towards initiating the divorce procedure is to draft a joint divorce petition and file it at the relevant Family Court.
  • Subsequently, the spouses would present their separate lawyers to represent them in the court.
  • The mutual consent divorce petition consists of a joint statement by the couple stating their incompatible differences and that they can no longer cohabit together and therefore, should be granted a divorce.
  • The same joint petition further consists the agreement relating to the custody of children, splitting of assets, alimony, maintenance, etc.
  • In the first motion, statements of both the spouses are recorded and then signed on paper in the Court.
  • After this, a 6 month cooling off period (not mandatory) is given to the couple towards one final attempt for reconciliation which is solely to provide one last hope for the couple to re-think about their divorce and try and make things work out.
  • After the lapse of the said 6 months also known as the reconciliation period, if both parties still don't agree to cohabit together, then the spouses have to appear for the second motion called the final hearing.

A recent Supreme Court judgement categorically stated that the 6 months reconciliation period (cooling off period) is not mandatory in cases where the couple has genuinely resolved all their matrimonial issues already and therefore, the cooling off period can be waived off but depending upon the discretion of the court.

  • Besides this, if the second motion is not made within 18 months, then the court will simply cancel the decree of divorce.

  • In addition, under the law it is clearly mentioned that either of the spouse can withdraw their consent at any time before the court passes the divorce decree.
  • Above all, the most important requirement for getting a mutual consent divorce is free consent of each spouse. In other words, unless there is absolute agreement between both the spouses to end their marriage and unless the court is completely satisfied with the same, no divorce will be granted.

What are the numerous benefits of a mutual consent divorce?

  1. A mutual consent divorce removes unnecessary disputes thereby saving plenty of time as well as money for both the spouses.
  1. In addition, decisions pertaining to child custody, maintenance as well as property rights can easily be agreed upon mutually even before the marriage is dissolved.
  1. In a mutual consent divorce, the court simply confirms and legalizes whatever is mutually agreed upon by the couple.

Where can a couple file for a mutual consent divorce? 

The couple can file for a mutual divorce in the Family Court of the city where the couple resided together for the last time, i.e. their matrimonial home or where the marriage was solemnized or where the wife is currently residing.

Are divorce laws different for different religions in India?

Yes, just like the marriage laws, divorce laws are also different for different religions in India. For instance,

  • Divorce laws for Hindus including Sikhs, Jains and Buddhists are provided under the Hindu Marriage Act, 1955.
  • Divorce laws for Christians are governed under the Indian Divorce Act, 1869.
  • Divorce laws for Muslims are governed under their personal laws of Divorce and Dissolution of Marriage Act, 1939 and the Muslim Women (Protection of Rights on Divorce) Act, 1986.
  • Divorce laws for all the inter-religion marriages are governed under a secular law i.e. the Special Marriage Act, 1954.

Can a spouse withdraw his/ her petition for divorce? 

During the 6 month cooling off period i.e. the time gap between the first and the second motion, either of the spouses can withdraw from a mutual consent divorce by filing an application before the court, stating that they no longer intend to get a mutual consent divorce. In such a situation, the other spouse only has one option left i.e. to file and fight a contested divorce.

A contested divorce can be filed on multiple grounds like:

  • adultery- voluntary sexual intercourse between a married person and some other person who is not their spouse.
  • desertion- complete physical withdrawal from the other spouse for a continuous minimum period of 2 years
  • cruelty- any willful and unacceptable conduct by either of the spouse on the other which can cause danger to life, mental/ physical health.
  • If the other spouse is of unsound mind
  • If the other spouse has converted his/ her religion
  • a spouse having renounced the world or being missing for a period more than 7 months
  • venereal disease- sexually transmitted diseases
  • leprosy- It is a transferable disease that infects the skin, mucous membranes, and nerves, which cause discoloration and lumps on the skin and, in certain cases, disfigurement and deformities.

Can a person remarry without getting a divorce? 

To remarry, getting a divorce is the pre-condition for a married person. In fact, remarrying without getting a legal divorce is punishable offence with 7 years’ imprisonment under Indian law.

Does the couple need to be physically present in the Court to obtain the divorce decree?

In majority cases, the couple is required to be present in the court during the 1st and 2nd motion. However, the court may allow camera proceedings when the court is convinced that physical availability (attendance) of either or both the spouses cannot be scheduled. The court has the complete discretion over this decision where it only decides after understanding and getting convinced from the facts of the case.

How can NRIs get a mutual consent divorce?

In case of divorce of an NRI couple, they can file a divorce petition in a foreign country under the laws where the spouses reside.

It is imperative that the decree by foreign courts should not be inconclusive of Section- 13 (Indian court may not enforce a foreign judgment if the judgment is not of a competent court)  of the Civil Procedure Code, 1908. In fact, if the divorce petition is filed in India but if one of the spouses is staying abroad then the court may allow for camera proceedings to reduce the effort of that spouse. 

What can an aggrieved spouse do against attaining coercive consent by the other spouse?

In case if the consent for mutual divorce has been obtained through force or coercion, it is the responsibility of the court to appropriately examine and find out if the consent for divorce has not been obtained maliciously.

However, if the court is unsuccessful to correctly determine if the consent for the divorce was given freely or not then such a divorce decree cannot and must not be regarded as a decree by mutual consent and therefore, the aggrieved spouse can file an appeal in the higher court to struck down such a decree and appropriately grant a mutual consent divorce.

What is the significance of the 6 months cooling-off  and is it mandatory?

The significance of the 6 months cooling off period is one last attempt towards trying to fix a marriage because the ultimate objective of the any marriage organization/ institution/ statute is to try and protect the marital bond at every cost. But yes there is no point trying to fix something which is broken beyond repair and in that situation the best thing to do is to start afresh.

No, the statutory cooling off period of 6 months is not mandatory and if the court deems fit, then it can waive off this cooling period if it is sure that the marriage is broken beyond repair. This implies that if the aggrieved couple has mutually decided to get their marriage dissolved, they can request the court to accelerate the procedure and not extend dissolving the marriage for another 6 months when the situation/ circumstance won’t change in 6 months.

How are issues related to maintenance and alimony decided in a mutual consent divorce? 

In mutual consent divorce cases, the aggrieved couple is required to mutually agree without any spouse forcing the other spouse on an appropriate sum of alimony or maintenance amount which will either be given by the husband to wife or wife to husband as the case may be.

This amount has to be agreed upon by both the husband and wife to avoid any dispute that may arise in the future.

How is child custody decided in divorce matters?

While obtaining a divorce through mutual consent both the spouses are required to settle the issue of child custody.

Ordinarily, the mother takes the custody of the child who is younger than 12 years of age with reasonable visiting rights with the father, however, the same must be agreed by both the parents for the court to grant the same.

Besides this, the aggrieved couple can also opt for joint custody of the child where 1 of the parents has the physical custody of the child, but both of them have legal custody of the child.

The court however, does not simply agree with the couple on everything as it is the responsibility of the court to try and make sure that the child does not have a troubled/ problematic childhood due to the divorce of the parents. Therefore, if and when the court is satisfied with what is best for the child, it will decide on the custody of the child.

How much time does it take to get a mutual consent divorce in India?

The entire mutual consent divorce procedure starting from the date of filing till the passing of the divorce decree can take around 6 months to 1-1.5 years at the most.

What happens when one spouse does not consent to something?

It is but natural for humans to not agree with each other and it is even more understandable to run into argument and disagreement with the person one is trying to split up for good and therefore, a lot of cases regularly come up when not all couples agree on the desirability, the grounds or the conditions for divorce which in turn creates trouble for the partner that is willing to start and file the petition to dissolve the marriage.

Can a mutual consent divorce decree be obtained through notary?

No, a mutual consent divorce cannot be obtained through notary in India. In fact, a valid decree of mutual divorce can only be granted by the Family Court of the appropriate jurisdiction.

Other Latest Articles

GET IN TOUCH

Once you fill in the enquiry form below, our team will scan our database to find lawyers who have carried out work similar to your & for the right fit of location & seniority. It is very helpful if you give us as much information as is possible on a non-confidential basis. That helps us assess the matter & choose the correct professional who would fit your needs.