Divorce by Mutual Consent

What is Divorce by Mutual Consent?

Divorce by mutual consent is a way of getting a divorce whereby the parties, i.e., the spouses, mutually agree or decide to get separated from each other amicably or peacefully. It is the easiest and simplest way of getting divorced.

Divorce by Mutual Consent is regulated by Section 13-B of the Hindu Marriage Act, 1955, and Section 28 of the Special Marriage Act, 1954

Section 13B in The Hindu Marriage Act, 1955

13B Divorce by mutual consent —

(1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the court by both the parties to a marriage together, whether such marriage was solemnised before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976)*, on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.

(2) On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnised and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.

Section 28 of the Special Marriage Act, 1954 which also deals with divorce on grounds of mutual consent is pari materia to the above section.

What is the basic requirement for filing a Divorce by Mutual Consent?

The parties must have been living separately for a period of one year or more before filing the petition for divorce and during this period of separation, they have not been able to live together as husband and wife

In which court and where do we need to file a petition for Divorce by Mutual Consent?

We can file this petition in the family court or district court of the place the marriage between the spouses had taken place or where husband and wife last resided together or where wife is residing at the time of filing of the Petition.

Step by step Procedure of Divorce by Mutual Consent

1. The first step is the filing of the petition or application for divorce which may be in the form of an affidavit and needs to be submitted in the family court.
2. In the second step, the parties are required to record their statements in presence of the Court. The parties will be required to state their reasons for the divorce and the terms on which they have agreed to separate (such as Maintenance, Right of visitation, custody, etc). In case the parties cannot attend the court, they may grant power of attorney to any other person (preferably a family member) to speak on their behalf. The petition needs to be submitted and signed before the judge. The court grants the First Motion, once the parties are heard.
3. Third Step is that the Court adjourns the mater for a period of six months. This period is called Cooling- off Period. This period may extend to eighteen months before which the parties need to file a petition for second motion.The Cooling-off period is granted for reconciliation during which parties may rethink their relationship. During this Cooling-off Period, both the parties are at liberty at withdrawing the petition for divorce.
4. The fourth step would be the filing of Second Motion that is after the period of six months, both are parties are again required to be present before the Court for recording their statements. If the parties confirm that they are unable to reconcile and wish to get seperated mutually, then the Court grants the second motion.
5. After this the Court passes an order dissolving the marriage by granting decree of divorce and thereby marriage stands dissolved.

Can a party withdraw the mutual consent divorce petition, after filing it in the Court?

After the grant of first motion and during the period of 6 months cooling-off period, any of the parties can withdraw the mutual consent petition by filing an application before the court stating that he/she does not wish to seek divorce by mutual consent.

The Court then grants no divorce decree.

The other party can then file a normal petition for divorce under the provisions of Section 13 of the Hindu Marriage Act, 1950.

In such a situation divorce can be granted only on grounds like cruelty, desertion, voluntary sexual inter-course with another person, unsound mind, conversion of religion by the other spouse, venereal disease, Leprosy, a spouse having renounced the world or being missing for a period of more than 7 years.

Important things which need to be considered in Divorce by Mutual Consent

Child Custody- The parties can mutually decide to take the custody of child/children. It can be shared or joined or exclusive depending on the circumstances and as the parties agree between themselves.

Maintenance/Alimony- The parties can decide themselves about the money that will be given to the wife by the husband or to the husband by the wife. The money can be a lump-sum amount as a one-time settlement or periodical payments. There is no minimum or maximum limit of maintenance. It can be any amount or no amount.

What are the Benefits of Mutual Divorce?

Divorce by mutual consent removes unnecessary quarrels and saves considerable time and monetary resources. With the increasing number of applications being applied for a divorce, a mutual consent divorce is the best option.

Where to file a Divorce Case?

The parties are required to file a divorce in the family court of the city where the two partners last stayed together, i.e. at their matrimonial home.

Can a Mutual Divorce Order be Obtained Through a Notary?

No mutual divorce can be granted through notary in India. A valid divorce order can only be granted by a family court of appropriate jurisdiction.

Is Divorce Law Different for Different Religions in India?

Yes, like marriage laws, divorce laws are also different for different religions. Divorce for Hindus is governed by the Hindu Marriage Act, 1955. This includes Sikhs, Jains and Buddhists. Christians are governed by the Indian Divorce Act, 1869. Muslims are governed by the Personal Laws of Divorce and the Dissolution of Marriage Act, 1939 and the Muslim Women (Protection of Rights on Divorce) Act, 1986. For inter-religion marriage, there is a secular law, the Special Marriage Act, 1954.

Is the presence of Parties Necessary to Obtain a Divorce Order?

In most cases, the parties are required to appear before the court during the first and second motions. Only in rare cases, on-camera proceedings may be permitted where courts are assured that the presence of the party in question cannot be arranged by all possible means and after that it is entirely at the discretion of the court.

How can an NRI Get a Divorce by Mutual Consent?

In the case of divorce of an NRI couple, they can file a divorce petition under the laws of the country in which the two parties currently reside. It is mandatory that orders by foreign courts should not conform to Section 13 of the Code of Civil Procedure, 1908. Basically, if a divorce petition is filed in India, where one of the parties is residing abroad, the court can allow camera proceedings.

What Happens when Consent is Obtained by Force or Helplessness?

If consent to the mutual divorce is obtained through coercion or coercion, it is the duty of the court to investigate whether consent has been obtained brutally. If the court fails to determine whether the consent is granted independently, the divorce order cannot be treated as an order of mutual consent. The aggrieved party may file an appeal to rescind such decree.

Is a Six-Month Statutory Idle Time Period Mandatory?

No, the statutory dormant period of six months is not mandatory. If the court deems it right, it can grant an exemption in this period. This implies that if the couple mutually decided to dissolve their marriage, they could request the court to speed up the process and not wait for six months.

How is the Maintenance Issue Resolved in a Case of Mutual Divorce?

In cases of divorce by mutual consent or uncontested divorce, the divorced husband and wife are required to agree on the amount of subsistence money or maintenance that may be given by the husband to the husband or wife.

How is the Custody of Children Decided in a Divorce Case?

Getting a divorce through mutual consent requires both parties to resolve the issue of child custody. The spouse can choose joint custody. Under this arrangement, one of the parents has physical custody of the children and gets legal custody of both children.

How Long it takes to get a Divorce Decree?

The entire process can take about six months to a year from the date of divorce filing to divorce.

What if one Party does not Agree?

There have been many cases when the couple do not agree on the desirability, grounds or terms of the divorce and in turn creates trouble for the other party, who is willing to initiate and file the petition. In such cases, it is advisable to obtain Divorce by filing a contentious petition.