This article helps people understand how divorce on mutual consent works, the documents required, and some of the monumental judgments in divorce cases.
Sometimes divorce isn’t a personal failure but the mature declaration that you and your partner have grown past the need for a relationship or marriage. Such is the case with Mutual consent divorce.
A mutual divorce is a legal procedure where both partners agree to end their marriage and settle all related issues such as child custody, property division, and alimony.
When people in a marriage of at least a year decide that they cannot stay together for any reason, they have the right to file for divorce on mutual consent.
A contested divorce is mostly the opposite of this. It is a type of separation in which one person uses legal means to divorce the other even if the second person opposes the divorce.
Let us help you out by summarising the criteria and conditions that must be completed prior to applying for a mutual consent divorce in India.
What are the Criteria of the Mutual Divorce Procedure in India?
Since the divorce is filed on mutual terms, the parties file it after reaching a consensus on all matters. Mutual divorce has a less aggravating process to be followed than other types of divorces. Let us move forward by understanding the conditions of divorce on mutual consent in India.
For a Mutual Divorce, the Following Requirements Must be Met
- At the time of filing the petition for mutual divorce, the couple must have already completed a year of living separately from each other. The reasons for living apart do not concern the court. The criteria can be accomplished by having separate residences or living separately in the same house for over a year.
- Any reunification or compromise between the couple is not possible for whatever reason, making it impossible for them to be living with one another.
- The participants willingly and deliberately decided on the termination of their marital contract without the involvement of any unjustified influence.
- The marriage between the petitioners has lasted for a year at a minimum.
What is Divorce With Mutual Consent and Contested Divorce?
Divorce with Mutual Consent is a harmonious legal process where both spouses willingly choose to separate after marriage. It’s a civilised and less complex way to end a marriage, allowing couples to agree on terms without prolonged litigation. This approach is faster, cost-effective, and avoids unnecessary conflicts, saving time, energy, and money.
In a Divorce by Mutual Consent, both partners agree to peacefully terminate their marriage, settling matters such as maintenance, alimony, and child custody. The legal provisions for such divorces are outlined in section 13-B of the Hindu Marriage Act, 1955, and section 28 of the Special Marriage Act, 1954. Couples seeking a divorce under the Hindu Marriage Act must wait for at least one year from the date of separation. They need to demonstrate a one-year separation, during which they were unable to live together as husband and wife, even if residing under the same roof. Convincing authorities of this separation, especially when living together, can pose challenges.
Most Important Points to Remember While Divorce
Before initiating divorce proceedings, certain crucial aspects should be settled through a Memorandum of Understanding:
Alimony/Maintenance
Agree on a one-time settlement amount if one partner struggles with daily expenses. Typically paid in one or two instalments, this arrangement depends on mutual understanding.
Property and Asset Settlement
Clarify ownership rights of shared property and assets between both partners.
Child Custody
Decide which partner will have custody of the children after divorce.
Pending Litigation
Resolve any ongoing legal disputes on paper before proceeding with mutual consent divorce.
First Steps
Initiate open communication about the future. If both partners agree that the marriage is untenable, they should acknowledge the breakdown without fearing societal judgement.
Child Custody Considerations
If children are involved, decide on custody and visitation rights. Discuss interim custody during vacations and holidays, emphasising the understanding and agreement between the parties.
Financial Settlement
Address various financial aspects, including alimony, maintenance, housing, education expenses, and joint investments. Mutual consent divorce lawyers facilitate calm discussions for parties to find their own solutions, considering the emotional nature of divorce proceedings.
When One Can Apply For Mutually Consented Divorce?
The fundamental requirement for a mutual consent divorce is the mutual willingness of both spouses to separate. Before filing for divorce, consider the following key points:
Place of Filing:
The divorce petition can be filed at:
- The place where the marriage occurred.
- The location where the husband and wife last lived together.
- The current residence of the wife at the time of filing the petition.
Ensure both parties agree on the decision to divorce, and adhere to the specified jurisdiction based on the aforementioned criteria for a smoother legal process.
How Much Time Does It Take Place To Get Final Divorce By Way Of Mutual Consent?
Securing a final decree of divorce through mutual consent involves a structured process under sec-13(B) of the Hindu Marriage Act, 1955. Here’s an overview of the timeline:
First Motion:
- After at least one year of separation, both parties appear before the family court.
- Joint statements on oath are presented, marking the first motion.
- If accepted, a mandatory cooling-off period of 6 months commences.
Second Motion:
- After the cooling-off period, parties may file the second motion petition for divorce.
- Another joint statement on oath is recorded.
- Upon signing, the family court grants the final decree of divorce.
Minimum 6-Month Period:
A waiting period of at least 6 months is mandatory between the first and second motions. This duration allows parties the opportunity to reconcile. If reconciliation fails, the final divorce decree is issued.
Can Mutual Consent be Withdrawn?
Either party can withdraw consent before filing the second motion. However, withdrawing consent after the first motion, as per a Delhi High Court judgement (Rajat Gupta vs Roopali Gupta, 2018), may lead to contempt of court proceedings against the defaulting party. The court discourages misuse of the first motion for personal advantage.
Where Can a Mutual Divorce Be Filed?
The option to file a mutual divorce is not restricted to a single jurisdiction. Parties can choose from the following options based on their circumstances:
Jurisdiction of Last Residence:
The family court where both parties last resided together holds jurisdiction.
Husband’s Residence:
The jurisdiction where the husband is living separately allows for filing.
Wife’s Residence:
If the wife resides separately, the jurisdiction of her residence is a filing option.
Place of Marriage:
The family court within the jurisdiction where the marriage took place is a valid choice.
This flexibility ensures that couples can initiate mutual divorce proceedings in a location most convenient and relevant to their current situations. The jurisdictional options cater to the diverse circumstances surrounding the separation of couples seeking a mutual divorce.
Documents to be Submitted to File for Mutual Divorce
- The husband’s residential proof
- The wife’s residential proof
- Information about the husband and wife’s occupations
- Current cash flow in the form of salary slips and job appointment letters
- A marriage certificate
- At least 4 photographs of the marriage
- Substantial evidence for the claim of living separately for 1 year
- Definitive proof linking to the efforts made by the parties for reconciliation that remained unsuccessful
- Documentation concerning the family’s property and assets
Additional information and documents may be demanded by the court depending on the case.
Provisions Regarding Divorce for Different Religious Groups
The Indian Penal Code contains laws regarding different religions and legislation for divorce on mutual consent. These are:
- The Hindu Marriage Act of 1955 establishes divorce policies for Hindus, along with Sikhs, Jains, and Buddhists.
- The Indian Divorce Act of 1869 enforces divorce rules for Christians.
- Muslims’ divorce settlements are controlled by the Divorce and Dissolution of Marriage Act, 1939, as well as the Muslim Women (Protection of Rights on Divorce) Act of 1986.
- A secular law supervises all interfaith marriages, the Special Marriage Act of 1954.
Provisions Regarding Divorce for Non-Resident Indians
An NRI couple may register a Legal separation document in a foreign nation as per the territory rules in which the partners live if they divorce.
Section 13 of the Civil Procedure Code of 1908 states that an Indian district judge must not implement an international decision if the judgement is not from a competent court.
In addition, if a marital application is submitted in India, but one of the partners is overseas, the court may grant webcam procedures to save that party time and energy.
Exemplary Cases of Divorce On Mutual Consent
To get a better understanding of how mutually consented divorces in India work, their restrictions, and limitations, we must look at some real-life examples:
Case 1- Arpit Garg Vs Ayushi Jaiswal
This claim was commenced in the High Court of Allahabad, a Family Court. The spouses filed a collaborative request for mutual consent divorce under Section 13 of the Hindu Marriage Act of 1955, which had been denied, and the plea was dropped on the grounds that it was submitted just under one year after the parties were separated.
The time is allotted so that couples have ample amount of time to reflect on this big decision of their lives, and the divorce does not get filed on an impulse.
The decision to file for divorce before completing one year of separation from each other and before completing at least one year of marriage does not hold up in court. While a mutual divorce may seem like an easier way out of a failing marriage, it’s important to approach the process with caution and seek legal advice to ensure your rights are protected.
Case 2- Smt. Sureshta Devi Vs Om Prakash
With the filing of this case, a question came to the Supreme Court – can a party that had given their consent at the time of petitioning without any coercion withdraw their consent and back out?
The Supreme Court heard views about this case from other big courts such as the Bombay High Court, Madhya Pradesh High Court, and Delhi High Court. They held the view that under Section 13B of the Hindu Marriage Act of 1955, the appropriate time for matters regarding consent was when the petition was initially submitted.
If the permission was granted willingly, there was no way to authorise any parties to withdraw their consent.
The view of the High Courts of Rajasthan, Punjab, Haryana, and Kerala protested that if the court gives itself the power to make the final decree only based on the initial consent shown by the parties, it means the entire purpose of Mutual divorce is negated.
The motion under the second subsection of Section 13 of The Hindu Marriage Act of 1999 allows the judiciary to reassure itself and confirm the sincerity of the complainants in the petition.
Finally, the court decided that to grant the decree of divorce the consent of both parties should be continuous. The divorce was not finalised in this case.
Conclusion
It is permitted for people belonging to various religions and non-resident Indians to file for Mutual divorce. Each pair is provided numerous opportunities to re-evaluate the final choice regarding the divorce.
A mutual divorce can be a faster and more cost-effective option than a contested divorce, which involves a court battle and can take months or even years to resolve. However, the consent should be ongoing. A judge’s order must only be issued after a thorough review of the facts and analysis of the evidence.
FAQ
How soon can we get a mutual divorce?
The timeline for mutual divorce varies, but generally, it involves two motions separated by a minimum 6-month cooling-off period. The earliest time frame is around 6 to 7 months, considering the mandatory waiting period and court proceedings.
What is the first motion for mutual divorce?
The first motion for mutual divorce is the initial step where both spouses jointly file a petition before the family court, expressing their intent to separate. This involves a joint statement on oath. It marks the commencement of the legal process, but the final decree is granted after the second motion.
Can a court reject mutual divorce?
Yes, a court can reject mutual divorce if the proceedings don't adhere to legal requirements or if there's a lack of mutual consent. Additionally, withdrawal of consent after the first motion may lead to contempt proceedings. It's essential to follow the legal procedures and fulfil the necessary conditions for a successful mutual divorce.
Is 6 months necessary for divorce?
Yes, according to Section 13-B of the Hindu Marriage Act, a minimum 6-month cooling-off period is mandatory between the first and second motions for mutual divorce. This period allows parties to reconsider and reconcile. If reconciliation fails within this time, the court proceeds with the second motion, leading to the final decree of divorce.
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