Divorce by Mutual Consent in India

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Divorce by Mutual Consent in India

Divorce by Mutual Consent | Law House | www.lawhousekolkata.com
How to get divorce by mutual consent in India?

What is Mutual Divorce?

Divorce by Mutual Consent or Mutual Divorce is when both husband and wife mutually agree that they cannot live together anymore and that the best solution being Divorce, they would present a Mutual Divorce petition jointly before the honourable court, without putting forth any allegations against each other.

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 fastest ways of being granted a divorce in India is through mutual consent as other options linger on for too long. The law says that all marriages which have been solemnized before or after the Marriage Laws (Amendment) Act 1976 can be annulled, provided the parties to marriage consent for the same in front of the court.

Requirements to be complied with for a Mutual Divorce:

  1. The parties have been living separately for a period not less than one year. It is doubtful whether 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.
  2. The parties have failed for any reason whatsoever to live together. In other’ words, no reconciliation or adjustment is possible between them.
  3. The parties have freely consented to the agreement of dissolution of marriage.
  4. The parties are at liberty to withdraw the petition. It seems that the petition may be withdrawn even at the instance of one party in course of six months from the date of presentation of the petition.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 inquiry, the unilateral right of a party to withdraw the petition appears to be barred.

Process/Steps involved in Mutual Divorce:

There are several steps involved to get a divorce by mutual consent. The procedure of mutual divorce in India generally begins with the filing of a petition as has been given under Section 13B of the Hindu Marriage Act. There are also two motions involved in this procedure. The following are the important steps:
 

  1. Joint Petition: The first step is the filing of a joint petition in the respective family court. This joint petition is to be signed by both parties. The divorce petition contains a joint statement by both the partners, that due to their irreconcilable 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.
  2. Appearance of Parties: The second step of the procedure is the appearance of both the parties to the divorce in the family court after the petition has been filed. The court fixes this date and the parties appear along with their counsels.
  3. Scrutiny of the Petition by Court: The court thereafter scrutinizes the petition and the documents filed by the parties. When and if the court is satisfied, it orders for the recording of statements of the parties on oath. In some cases, the court attempts to bring about reconciliation between the parties. When there is a failure to reconcile the parties, the divorce matter is proceeded with.
  4. Recording of statement and passing of the order on First Motion: After the statements of the parties have been recorded on oath, an order on the first motion is passed by the court. After this, a 6 month period is given is given to the parties, after which the parties are required to file the second motion. This has to be filed within a period of 18 months from the date of the filing of the petition for the first motion.
  5. Second Motion: 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. This also involves the parties appearing and recording of statements before the court. In a recent judgement, 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. Besides, according to the section, as well as the settled law, it is clear that one of the parties may withdraw their consent at any time before the passing of the decree.
  6. Decision of the Court: The most important requirement for a grant of divorce by mutual consent is the free consent of both the parties. In other words, unless there is 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. Upon the basis of the statements as recorded by the parties and upon the basis of the particular facts and circumstances of the cases, the court gives the appropriate orders and dissolves the marriage. The court then passes the decree of divorce and now the divorce becomes final.

Advantages of Mutual Divorce

Taking a mutual consent divorce removes unnecessary quarrels and saves a lot of time and monetary resources. With the ever-rising number of applications being filed for divorce, mutual consent divorce is one of the best-given options.
 

Where to file the Divorce case? 

The parties are required to file for divorce in the family court of the city where both the partners lived together for the last time, i.e. their matrimonial home. It can even be presented in the court of the city/place where the marriage was solemnized.


What information/documents are required for Mutual Divorce?

The following documents would be required for a divorce by mutual consent:

  1. Address proof of husband
  2. Address proof of wife
  3. Details of professions and present earnings
  4. Certificate of Marriage
  5. Family background information
  6. Photographs of marriage between husband and wife
  7. Evidence to prove that the husband and wife have been living separately for more than one year
  8. Evidence proving failed attempts of reconciliation
  9. Income tax statements
  10. Details of property and assets of the parties

Certain other documents may also be required, depending upon the facts and circumstances of the particular case.
 

How long does it take to get a decree of Divorce by Mutual Consent in India?

The average timeline of the entire process, from the date of filing till getting the divorce decree can be around six months to two years. However, it can take longer, depending upon the nature of the particular case. No set time can be stated as each case is different and independent of the other. Keeping that in mind, however, mutual divorce has been seen to be the least time taking as compared to other procedures of divorce.

Can Mutual Divorce decree be obtained through notary?

No, mutual divorce cannot be granted through notary in India. A valid decree of divorce can only be granted by the family court of appropriate jurisdiction.
 

Can a party withdraw the petition for Divorce? 

During the six month period or time gap between first motion and the second motion, either of the parties can withdraw by filing an application before the court, stating that they do not intend to get a divorce through mutual consent. In such a circumstance the other party would only have one option -to file for contested divorce. A contested divorce can be filed on any of the following grounds like cruelty, desertion, voluntary sexual inter-course with another person, unsound mind, conversion of religion by other spouse, leprosy, venereal disease, a spouse having renounced the world or being missing for a period of more than 7 months.  
 

Can a party remarry without getting a Divorce? 

To remarry, getting a divorce is a pre-condition. If you remarry without getting a divorce then it is a punishable offence with 7 years imprisonment. 
 

Is appearance of parties necessary for obtaining Divorce decree?

In most cases, parties are required to be present before the court during first and second motion. Only in rare cases, camera proceedings may be allowed where the courts are convinced that the attendance of the party in question cannot be arranged by all possible means and it is totally on the discretion of the court to allow it.  
 

How can NRIs get a Mutual Divorce?

In case of divorce of an NRI couple, they can file a divorce petition in a foreign country under the laws where the party currently resides. It is imperative that the decree by foreign courts should not be inconclusive of section 13 of the Civil Procedure Code, 1908. Infact, if the divorce petition is filed in India where one of the parties is staying abroad then the court may permit for camera proceedings.  
 

What happens when mutual consent is obtained by force or coercion?

It is the duty of the court to examine that the consent is not viciously obtained. If the court fails to determine whether the consent was given freely or not, then such a divorce decree cannot be regarded as a decree by mutual consent. In case the consent for mutual divorce is obtained through force or coercion, the aggrieved party can file an appeal to strike down such a decree. 
 

Is the statutory cooling-off period for six months mandatory?

No, the statutory cooling off period for six months is not mandatory. If the court deems fit, then it can waive off this cooling period. This implies that if the couple has mutually decided to dissolve their marriage, they can request the court to expedite the process and not wait for another six months.
 

How is the issue of maintenance tackled in case of a Mutual Divorce? 

Alimony is an important aspect in matters of divorce proceedings. In cases of mutual divorce, the divorcing husband and the wife are required to agree on the sum of alimony or maintenance which will be given either by the husband to wife or wife to the husband as the case may be.

While deciding the amount of alimony, factors such as the duration of the marriage, age of the recipient, health of spouse, child custody, financial position of either spouse, etc. are taken into consideration.

In case the parties mutually agree that there is no requirement to pay any alimony, it is not compulsory for the parties to decide the quantum to be paid. No maximum or minimum amount of alimony has been set by law, hence, it is upon the parties to agree upon a particular sum. It is generally decided as a gross sum, or a monthly amount, not exceeding the life of the receiver, giving regard to the payer’s own property and income.

How is child custody and support decided in Divorce matters?

While obtaining a divorce through mutual consent, the parties are required to settle the issue of child custody. Custody of the child implies as to who the child will physically reside with. The custodial parent would be the primary caretaker and would thereby be responsible for the medical, educational and emotional needs of the child.

Both the parents are equally competent to take the custody of the children. However, in this kind of divorce, the parties need to mutually agree upon matters such as – who would have the physical custody of the child, the duration of visitation rights, the interim custody, how the child’s living and educational costs will be met, etc. The spouse can even opt for joint custody. Under this arrangement, one of the parents would be the primary caretaker and thus have the physical custody of the child, and both of them would have the legal custody of the child.

The court regards the interest and welfare of the child as paramount considerations in matters of child custody. The court is the parens patriae i.e. the ultimate guardian of the child and hence the minor child’s property/income is protected by law. Moreover, the terms of custody, access and child support can be changed in case the circumstances are altered, or in the best interest of the child.

 

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 covered by Hindu Marriage Act, 1955. This includes Sikhs, Jains and Buddhists. Christians are governed by Indian Divorce Act, 1869. Muslims are governed by Personal laws of divorce and Dissolution of Marriage Act, 1939 and the Muslim Women ( Protection of  Rights on Divorce) Act, 1986. For inter-religion marriages, there is a secular law, Special Marriage Act, 1954. The following list explains mutual divorce in different religions: 
 

  1. Mutual Divorce under Muslim Law :Under Muslim Law, there are two categories of divorce – ‘judicial’ and extra-judicial. Mutual Divorce under Muslim Law falls under the extra-judicial category. There are two kinds of divorce by mutual agreement called ‘khula’ and ‘mubarat’. Under both these kinds of mutual divorce, the woman is to part with her ‘dower’ or some other property.‘Khula’ under Muslim Law is said to be an agreement between the husband and wife for dissolving a union in lieu of compensation (part of her property) that is paid by the wife to her husband. Even though this consideration is important, the actual delivery of property is not a precondition for the validity of the divorce under ‘khula’ system. An irrevocable divorce takes place once the husband gives his consent, and the husband has no right to cancel the ‘khul’ on the ground of consideration not having been paid.Under the ‘mubarat’ form of mutual divorce, both the parties must desire divorce, and thus the proposal for it can emanate from either wife or husband. Both these parties should be willing to separate. Once the offer is made, the other party must accept it, and once it is accepted, the divorce becomes irrevocable. Under the Sunnis, once the husband and wife enter into a ‘mubarat’, all the rights and obligations of the parties come to an end. In Shias, a proper form is imposed, i.e. the word ‘mubarat’ should be followed by the word ‘talaq’ for the divorce to take place. These words should be uttered in Arabic, and the intention to end the marriage should be expressed clearly.In both ‘Khula’ and ‘Mubarat’, the wife shall go through the ‘iddat’ period and in both, the divorce is an act of the parties and no intervention by the court is required.
     
  2. Mutual Divorce under Christian Law : Divorce for Christians in India is provided for under the Divorce Act, 1869. Section 10 A of the Act gives the provision for dissolution of marriage by mutual consent. A petition for mutual divorce can be presented by both the parties to the appropriate district court. The petition should be presented upon the grounds that the parties have been living separately for more than a year and that it is not possible for them to cohabit together and that the decision to dissolve the marriage has been mutually agreed upon.This petition can be withdrawn after the expiry of 6 months from the date of the presentation of the petition, but before a lapse of 18 months from this date.
     
  3. Mutual Divorce under Parsi Law :Provisions for marriage and divorce for Parsis in India are given in the Parsi Marriage and Divorce Act, 1936. Divorce by Mutual Consent is given under Section 32B. It states that both the husband and wife can together file for mutual divorce upon the ground that they have been living separately for a period of one year or more, and that they have not been able to live together. They have to mention that they mutually agree that the marriage should be dissolved. However, a suit under this section cannot be filed, unless one year has elapsed since the date of the marriage.


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