Divorce by Mutual Consent 

For whom Marriages are difficult, Divorce is more difficult. Couples don’t marry thinking their relationship may end up in divorce, for some divorce may leave bitter experience. If couples/ parties to marriage are unable to deal with the harsh realities of marriage relationship, the best option available to them is to approach the Family Court and seek legal separation/Divorce by way of mutual consent, which saves their time, money & energy & they may be able to avoid long drawn bitter court proceedings in addition leaves no room for unnecessary confrontation and most importantly avoid quarrels in public.

So, Divorce by Mutual Consent may be filed by way of joint petition, in situations where both the spouses have mutually and amicably agreed amongst themselves that they do not want to live as Husband & wife anymore. Divorce by Mutual Consent is best way to seek legal separation without making any allegations or counter allegation against other spouse before the court of Law. Divorce by Mutual Consent is similar to “no-fault divorce”, but being presented jointly by both Husband & wife. With the increasing number of incompatible working couples quick divorce has become need of hour is the best option.

These are usual questions by those seeking Divorce by Mutual Consent

1.    What laws are applicable to Divorce by Mutual Consent?

2.    What are requirements for filing Mutual Consent Divorce?

3.    Do we need to live separately for a year?

4.    How soon after marriage joint petition for Divorce by Mutual Consent?

5.    What is the procedure for Mutual consent Divorce?

What laws are applicable to Divorce by Mutual Consent?

For those married under Hindu Marriage act or to say by way of traditional Hindu marriage, Section 13-B of the Hindu Marriage Act, 1955 (as amended by the Amendment Act No. 68 of 1976) lays down the relevant provisions for divorce by mutual consent of husband and wife, i.e., by mutual consent of both parties to the marriage. Hindu Marriage Act is applies to individuals who are Hindu, Buddhist, Jaina or Sikh by religion.

“13-B. 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 district court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 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 solemnized 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.”

For those who married under SPECIAL MARRIAGE ACT or in other words got Registered Marriage done before marriage registrar, or in simple words got Court Marriage done, a similar provision for divorce by mutual consent exists also under Section 28 of the Special Marriage Act. Usually inter Religion and at times inter caste marriages are done under Special Marriage Act, and So, Divorce by Mutual Consent may by those married under above mentioned procedure, can be filed by way of joint petition made to Family court of competent jurisdiction.

For Christian couples, or those married in a church Mutual Consent Divorce is governed by Section 10A of The Divorce Act, 1869.

Muslims are governed by Personnel laws of Divorce and also the Dissolution of Marriage Act,1939 & The Muslim Women (Protection of Rights on Divorce) Act,1986. Parsis are governed by The Parsi Marriage & Divorce Act-1936.

What are requirements for filing Mutual Consent Divorce?

There may be numerous reasons due to which a couple may decide to part ways and legally split from each other. However, in cases of mutual consent divorce, the reasons for obtaining divorce are irrelevant, however, decision for divorce has been taken jointly by both the parties with mutual understanding and agreement.

Following requirements are must before filing Mutual consent Divorce

(a) The parties to the marriage must have been living separately for a period not less than one year. They may have lived separately by mutual consent or by force of circumstances or situation, court may not to go into the details if parties to marriage have decided to take Divorce by Mutual Consent. Unless the consent of any of the parties to such petition is vitiated by coercion, fraud or undue influence, the court has no power & jurisdiction to deny such relief and/or not to allow divorce.

(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 to the must have given consent for divorce out of free will & without pressure.

(d) The parties to marriage are at liberty to withdraw the petition which may be withdrawn even at the instance of one party in course of six months from the date of presentation of the petition or any time before divorce is finally granted.

Do Husband & Wife need to live separately for a year before application for divorce by Mutual Consent can be filed?

Couples/ Parties to marriage must not be living as Husband & Wife for at-least one year & should not have any conjugal relationship between them during this time, however even if Parties to marriage comply the above mentioned conditions, but are living in same house, but in different rooms/floor, Divorce by mutual consent can still be jointly applied.

What are steps before Mutual Consent Divorce can be filed?

Before Parties to marriage decide to file petition for Divorce by Mutual Consent, they should approach Good Matrimonial / Divorce Lawyer and discuss with him future course & understand how he can help in minimizing hassles in court process. Good Matrimonial / Divorce Lawyer is likely to assist parties to marriage who intend to take Divorce by Mutual Consent, regarding various aspects including financial settlement which may include alimony, maintenance, house, Custody of Children, Children Visitation rights, education expenses of children , higher education expenses, marriages, istridhan, joint investments, joint accounts and many other. As Good Matrimonial / Divorce Lawyer, we provide platform to parties to discuss these issues in calm atmosphere and reach to their own solutions. We as a mutual consent divorce lawyers provide different options using our vast experience in the field to resolve issues affecting the chances of settlement. Sometime, emotions between spouses are such all negotiations fail and they need expertise of Good Matrimonial / Divorce Lawyer to settle their disputes. 

If children are involved, physical custody of the children, duration of visitation rights and interim custody during summer and winter vacations and other holidays become points of dispute.  Both Husband & Wife may be equally competent to take the custody of the children, however the welfare of the minor children should prevail over ego of Husband & Wife while making decision on permanent custody of Children. 

Procedure for Filing for Divorce

The procedure for seeking a divorce by mutual consent, is to start with getting petition for Divorce by Mutual Consent drafted by a Matrimonial Law Expert / Divorce Lawyer, & subsequent filing of the petition jointly, supported by affidavits duly signed by both Husband & Wife attested by Oath Commissioner /Notary, accompanied with Vakalatnama, before Family court located in the district where parties to marriage last resided together or district where wife is presently residing.

Petition for mutual consent divorce can be filed at any of the following place:-

·         Place where marriage was solemnized.

·         Place where husband and wife last resided together.

·         Place where wife is residing at the time of filing of the Petition

Once petition for divorce by mutual consent is filed, & comes for hearing both Husband & Wife are required to be present in the Court for recording of joint statement. In the either Husband or Wife is unable to physically present for any reason whatsoever, such party can appear through power of attorney granted by such party for this purpose. Such power of attorney holder preferably should be a family member of such spouse who is not able to present himself/herself before the court.

On the date of hearing, both Husband & Wife along with their lawyers, are required to appear before the Court. The Court may talk to both the parties jointly &/or independently and try to explore any possibility of a settlement between them. In case the Court is unable to settle the disputes and differences between the parties, it will move ahead with the mutual consent divorce proceedings.

Divorce by Mutual Consent is primarily divided in two stages, First Motion & second Motion, & time gap/cooling period of minimum of 6 months & Maximum of up to 18 months is mandatory.

During both First Motion & Second Motion, Statements of both Husband & Wife are recorded before the Family Court Judge, to the effect that they have moved the mutual consent divorce petition out of their own free will, and without any force or undue influence from any person. Both the parties are also required to sign their statements made before the Family Court. Subsequent to the satisfaction of the Court regarding the above, an appropriate order is passed and the 1st motion of the mutual consent divorce proceedings would come to an end. At some places like Gurgaon, the court gives a date after 6 months, when joint statement for second motion is recorded, while for Family courts located in Delhi, after a period of 6 months, which is also termed as the ‘cooling off period’, a fresh Petition for 2nd motion for the mutual consent divorce as contemplated under Section 13-B(2) of the Hindu Marriage Act has to be prepared and filed by your Good Matrimonial / Divorce Lawyer.

A gap of six months is given between the two motions, so as to offer the estranged couple adequate time to reconsider their decision of dissolving their marriage. After statements by both husband and wife are recorded for the Second motion & if the judge is satisfied that all the necessary grounds and requirements for the divorce have been met, the couple is granted a Decree of Divorce. The entire process and procedure for the 2nd motion is usually the same as it is for the 1st motion. 

If joint statement for second motion is not made within the period of 18 months, then the court will not pass the decree of the divorce. In the event either party withdraws the divorce petition within 18 months of the filing of the First Motion Petition or refuses to make joint statement for Second Motion and if the concerned party continues to refuse consent to the Mutual Consent divorce petition, the court no longer has the right to grant a divorce decree. The law is well settled that either of the parties may withdraw their consent at any time before the passing of the decree. The most important requirement 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 Sureshta Devi v Om Prakash it has been held by Supreme Court that a party to a petition for divorce by mutual consent can unilaterally withdraw his or her consent.

On the contrary the Bombay High Court in Jayashree Ramesh Londhe v. Ramesh Bikaje Londhe, expressed the view that crucial time for the "consent by parties to divorce" under section 13B was the time when the petition was filed. If the consent was voluntarily given, it would not be possible for any party to nullify petition by withdrawing the consent. The Court took the support from Order 22, rule 1 of the Code of Civil Procedure which provides that if a suit is filed jointly by one or more plaintiffs, such a suit or a part of a claim cannot be abandoned or withdrawn by one of the plaintiffs to the suits. The similar view was adopted by High Court of Delhi in Chander Kanta v. Hans Kumar, and Madhya Pradesh High Court in Meena Dutta v. Anirudh Dutta.

What can the other partner do under such circumstances?

Not all estranged couples agree on the desirability, grounds or the conditions of divorce. In such situations there is no option available to the other party to such circumstances except to file a normal petition for divorce under the provisions of the Section 13 of the Hindu Marriage Act, 1955.This forms the case for the filing of a contested divorce. Some of the grounds on which either spouse can file for a divorce in India are:

·         Cruelty, which includes Infliction of physical and/or mental CRUELTY on the petitioner by the spouse, which may result in danger to life and health of the former.

·         Adultery on the part of the spouse of the petitioner, or any other sexual relationship outside marriage.

·         Willful desertion or abandonment of the petitioner by the spouse, for a continuous period of two years in India, before the date of the filing for divorce.

·         The other spouse being of unsound mind, Leprosy; venereal disease

·         conversion of religion by the other spouse

·         a spouse having renounced the world or being missing for a period of more than 7 years

Details on Contested Divorce & grounds for same are also discussed separately.

When the divorced persons can remarry?

Depending on the nature of decree, after grant of Divorce by Mutual Consent, Parties can marry any time after grant of Divorce by Mutual Consent, however in case of divorce granted by courts duly contested by other spouse, Divorced individual may re-marry after expiry of three months from the date of decree if no notice of appeal is received by the person remarrying from the other person.

What are the costs involved in getting divorce by mutual consent?

Total Expenses for Divorce by Mutual Consent may be assessed in preliminary meeting with lawyers at Vivek Nasa & Associates. 

Above discussion is only a brief explanation of the procedure and proceedings for obtaining a mutual consent divorce in India. There are a lot of other formalities and complexities attached to the same, which vary from one case to another and from one Court to another.

For any assistance please contact us & Specific Queries related to Divorce may be sent to email id : info@viveknasa.com or through WhatsApp on +91-9811896536